Director of Public Prosecutions v Waleed Haddara (Ruling No 2)
[2012] VSC 277
•15 June 2012
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 0176 of 2011
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| WALEED HADDARA |
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JUDGE: | KAYE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 June 2012 | |
DATE OF RULING: | 15 June 2012 | |
CASE MAY BE CITED AS: | DPP v Waleed Haddara (Ruling No 2) | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 277 | |
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CRIMINAL LAW – Evidence – Attempted murder – Tape recording made by principal prosecution witness tendered in evidence – Witness claiming tape was of circumstances of alleged shooting – Cross-examination as to time recording made – Cross-examination based on telephone device records in depositions – Prosecution giving notice of additional witness to explain time of recording made – Whether unfair prejudice to accused – Procedural unfairness held to outweigh probative value of new evidence – Evidence not admitted – Evidence Act 2008 (Vic) 2008 s 137.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M Rochford SC and Ms J Warren | Solicitor for Public Prosecutions |
| For the Accused | Mr C Dane QC | Garde-Wilson Lawyers |
HIS HONOUR:
The prosecution has given notice in this case that it intends to call Aaron Beardsmore to give evidence, and it has provided a copy of the statement of the evidence of Mr Beardsmore to the defence. Mr Dane of Queen’s Counsel, who appears for the accused man, has objected to the admissibility of the evidence of Mr Beardsmore.
The accused man is charged with the attempted murder of Sabet Haddara, and with recklessly endangering the life of Antonio Sawan at Altona North on 6 June 2010. It is alleged that the accused man shot at a Vectra motor vehicle, in which Sabet Haddara and Antonio Sawan were the occupants, in Chambers Road, Altona North. At the time, it is alleged that the accused man was in a Mitsubishi Lancer motor vehicle driven by one XY. It appears that the incident which has given rise to these charges occurred at about 10.30 p.m.
The trial of this case commenced before me on Monday, 4 June. On that day, a preliminary point as to the admissibility of other evidence was argued. I ruled on that point on Tuesday, 5 June, and then a jury was empanelled. Counsel each made openings to the jury. On the next day, the first witness, Sabet Haddara, gave evidence, but, as a result of matters which he stated gratuitously in re‑examination, it was necessary to discharge that jury without verdict.
The jury in the present trial was then empanelled on 7 June. On that day, counsel each made openings to the jury, and Sabet Haddara and Antonio Sawan have each given evidence. XY gave his evidence on Friday, 8 June, and Mr Dane commenced to cross‑examine him in the afternoon of that day. The trial resumed after the long weekend on 12 June, and Mr Dane completed his cross‑examination of XY later that day.
The Crown case is now almost complete. Apart from Mr Beardsmore, it is only intended by the prosecution to call one more witness, namely, the informant.
The evidence, which the prosecution wishes to adduce from Mr Beardsmore, relates to two exhibits, which were tendered by Mr Dane in the course of his cross‑examination of XY.
In his evidence, XY stated that, on 6 June 2010, he met the accused man at about 9.30 p.m. He said that the purpose of that meeting was that the two men intended to exchange a 9 mm Beretta handgun, belonging to the accused man, for a .22 automatic machine gun. XY stated that shortly after the accused man got into his vehicle, he activated the recording mechanism on his Nokia mobile phone.
A recording, made by that phone, was tendered as an exhibit in this case, and is Exhibit C. On it can be heard the recording of a conversation between two men in a motor vehicle, and towards the end of it there can be heard a series of sounds which are consistent with the firing of gunshots.
In his evidence XY testified that the conversation, contained in the recording, was between himself and the accused man, which took place before and shortly after the shooting, and he has also stated, in his evidence, that the sounds, which can be heard on the recording, were shots fired by the accused man using his Beretta handgun at the Vectra vehicle.
XY in his evidence stated that, after the shooting, he dropped the accused man off at an address, and then XY proceeded to the address of a friend, at which he left the Mitsubishi vehicle. He stated that, at that stage, he turned off the record button on the mobile phone.
Shortly after that, another friend, Nathan Reid, picked him up, and the two men then proceeded to an address in South Melbourne, in order to undertake the exchange of the weapons.
XY stated that, at that stage, he took a photograph of the .22 machine gun, which was to be exchanged for the Beretta on his Nokia phone, and he sent that photograph by text message to the accused man. When the accused man approved the transaction, the exchange of the two weapons took place, XY received the .22 machine gun and then took it and gave it to the accused man.
It is in that setting that, in cross‑examination Mr Dane cross‑examined XY, among many other matters, relating to the time at which he recorded the conversation which can be heard on Exhibit C, and the time at which he took the photograph of the machine gun, which was also taken on the Nokia telephone. In doing so, he tendered two sets of documents, which are each entitled “device report” in respect of XY’s Nokia telephone. The first set of documents is contained in Exhibit 2, and it relates to the recording of conversations on the phone which was tendered as Exhibit C. Page 15 of that document contains the only entry in relation to 6 June 2010. The entry reads: “created 6 June at 12:06:02 p.m. Modified 6 June at 12:07:24” and then there is another entry “created at 12:13:14 p.m. Modified 12:41:50 p.m”.
On 12 June 2012 in this trial, Mr Dane cross‑examined XY in relation to the times, at which XY stated that he made the recording which is contained in Exhibit C, and Mr Dane specifically put to XY that the recording of Exhibit C had not been made at the time at which XY stated. He also put to XY the proposition that the shots, which can be heard to be fired on Exhibit C, were not fired at any human being. XY took issue with both of those propositions.
Mr Dane then cross‑examined XY as to the time at which he took the photograph of the 22 weapon on the Nokia phone. Mr Dane put specifically that the photograph was taken at 2.30 p.m. on 6 June 2012. In support of that proposition, he tendered, as Exhibit 4, the device report of photographs taken by the Nokia phone of XY. On p.4 there is a photograph of a .22 gun. The entry is 6 June 2012 and it states “created 2:30:20 p.m.”.
The evidence, which the prosecution now proposes to lead from Mr Beardsmore, is intended by the prosecution to meet the discrepancy between the times contained on the device reports, which have been tendered by Mr Dane on behalf of the accused man, and the times which XY stated in his evidence of the conversation which XY said he had with the accused man and the time at which XY said he took the photograph of the .22 weapon.
Mr Dane raised preliminary objection to that evidence on the basis that the evidence of Mr Beardsmore is that of an expert. Mr Beardsmore in his evidence, according to his statement, will state that he is employed by Nokia Corp as an assistant manager of its Hurstville store. In his statement, he says that one of his roles is to analyse customers’ handsets and to assist them in backing up data and the recovery of data.
He said on Wednesday, 13 June 2012 he was provided by Victoria Police with a Nokia mobile phone which he plugged into his computer and analysed. He was asked to find out when two files on the phone were put into the phone. He states that he reviewed the properties of the sound clip which is on the file and that his review indicated that that file was loaded on to the memory card on Sunday, 6 June 2010 at 10:41:50 p.m.
He then reviewed the properties of the photo file and that indicated that it was loaded on to the memory card on Monday, 7 June 2010 at 12:30:20 a.m.
As I stated, Mr Dane made a preliminary objection to that evidence on the basis that it was opinion evidence, and that, on the face of it, Mr Beardsmore is not suitably qualified to give such evidence.
I must say that it is difficult to assess, from the brief statement provided by the Crown, whether the evidence being proffered is that of an expert or not, and in particular whether it is opinion evidence.
As I understand it, and as explained by Mr Rochford, Mr Beardsmore did no more than interrogate the memory of the phone, and by doing so he was able to produce the results which are contained in his statement. If that is correct, the evidence, which is intended to be called from him, is probably not opinion evidence, and, provided he has the necessary expertise to undertake the task which he said he performed, his evidence would be admissible.
However, if I were to admit the evidence, I would, of course, permit Mr Dane to explore that aspect of it on a voir dire and indeed I would in any event permit Mr Dane to have a Basha inquiry in relation to the evidence.
The principal objection, however, made by Mr Dane to the admissibility of the evidence, was that I should exclude it on the basis of s 135 and s 137 of the Evidence Act. In a criminal trial, s 137 is probably more relevant. It 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.”
It is well recognised that, in that context, prejudice is not constituted by the fact that the evidence, sought to be adduced by the prosecution, strengthens the prosecution case against an accused man. Rather, in the context of this case, the question of prejudice is to be determined by whether the probative value of the evidence is outweighed by any unfair procedural or forensic disadvantage to the accused man, which might arise given the stage at which this evidence is sought to be introduced by the prosecution. See Haoui v R.[1]
[1][2008] NSWCCA 193, especially at paragraphs 93 to 97 and paragraph 112 (Sheller JA).
The starting point for the analysis is a proper consideration of the potential probative value of the evidence sought to be adduced by the prosecution. On any view, it seems to me that the evidence would be of quite substantial probative value. XY is obviously the critical prosecution witness in the trial. Ultimately, the outcome of the case will depend on whether the jury are satisfied beyond reasonable doubt of his evidence. As a result, and unsurprisingly, his credibility was vigorously and skilfully attacked by Mr Dane in cross‑examination.
In this context, the recording, which is constituted by Exhibit C, is a most important piece of evidence. If the jury is satisfied that one of the voices on it is that of the accused, and that the recording was made at times which were shortly before and after the shooting in Chambers Road, then the recording would constitute important support for the evidence of XY. Thus, the point made by Mr Dane in his cross‑examination of XY, concerning the time at which the recording was made, and the photograph was taken, is significant. Exhibit 2 and Exhibit 4 each have the potential to raise a real doubt about that aspect of XY’s evidence. Thus, it follows that Mr Beardsmore’s evidence, if it were permitted to be given, would be relevant, and it would relate to a significant piece of evidence in the case. As such, for the purposes of s137 of the Evidence Act, I would proceed on the basis that it does have important probative value in the case.
The critical question, then, is whether, if the evidence is admitted, it would occasion unfair prejudice to the accused man, of the type I have described, which would outweigh the probative value of the evidence if given. If so, s 137 mandates that I would exclude the evidence.
Mr Dane, in support of his submissions, has pointed out that the device reports, which have been tendered in evidence by him, were part of the hand‑up brief served for the committal proceeding. He was at all times entitled to accept them as accurate records of the times stated on them. He has now completed his cross‑examination of XY, and an important aspect of that cross‑examination was his questioning of XY as to the times at which the recording of the conversation and the photograph of the .22 weapon were made. He has submitted that it would therefore be unfair to the accused man to permit the prosecution, at this late stage in its case, to introduce evidence, which would undermine an important part of his cross‑examination of XY.
Mr Rochford, Senior Counsel, who appears with Ms Warren for the prosecution, responded to that proposition, by arguing that any prejudice, which might be occasioned to the accused man as a result of the introduction of the evidence, was brought about by the conduct of the defence in this case. He based that submission, it would seem to me, on two principal propositions. First, he submitted that the prosecution could not have reasonably anticipated the attack which was made by Mr Dane on XY’s evidence relating to the time at which he made the recording and took the photograph. In particular, he submitted that the prosecution could not have reasonably anticipated that Mr Dane would seek to attack XY’s evidence by raising a doubt as to whether the conversation, which was recorded, took place earlier in the day, and the photograph of the gun was taken earlier in the day. Mr Rochford submitted that that issue was only raised at a late stage by Mr Dane, namely, during the opening of the second trial before the jury on 7 June, and as such it constituted an unexpected and unforeseen approach taken on behalf of the accused man.
The second proposition made by Mr Rochford was that, before Mr Dane cross‑examined XY on the issue of the times contained in the device reports, Mr Rochford had alerted him to the fact that those times might not reflect the actual time at which the recording of the conversation was made and the time at which the photograph of the .22 weapon was taken. He has informed me that he told Mr Dane that he had been seeking to obtain evidence, which would clarify the apparent discrepancy between the device reports and XY’s evidence as to the issue of timing. He submitted that Mr Dane could have deferred his cross‑examination of XY totally, or, alternatively, that he could have deferred that aspect of his cross‑examination of XY, which related to the timing of the making of the recording of the conversation and the taking of the photograph, until Mr Rochford had had the opportunity to obtain the evidence from Nokia which might have clarified the issue.
Based on those two propositions, Mr Rochford contended that any prejudice, which might be suffered by the accused man as a result of the introduction of Mr Beardsmore’s evidence at this stage, was prejudice made by the accused.
It is convenient for me to commence with those two points made by Mr Rochford. The first point is that the prosecution could not have anticipated, or reasonably anticipated, that the defence would put in issue the time at which the recording of the conversation and the time at which the photograph of the 22 gun were made. I do not accept that proposition for two reasons.
First, I think it is quite obvious that at all times in this case XY’s evidence would be in strong dispute and in issue. It was inevitable that his credibility would always be attacked. XY himself was criminally concerned in the shooting which did take place at 10.30 p.m. on 6 June 2010. He pleaded guilty to a charge arising out of those events and gave an undertaking to the sentencing judge that he would cooperate and give evidence in relation to the matter. As a result he received a more lenient sentence, which was a non‑custodial sentence arising from his cooperation.
In that context it was clear that, as a trial judge, I would be obliged to and would give a direction under s 165 of the Evidence Act that the jury must take special care in analysing the evidence of XY. As such, the recording of the conversation on the telephone of Mr Haddara would be a very important piece of evidence when the jury came to consider the effect of the directions which I would give them.
In order that that recording provide appropriate support to XY’s evidence, the jury would need to be satisfied, firstly, that it was authentic; secondly, that the voice on the recording was that of the accused; and thirdly, that the recording was made at the relevant time, namely some time after 9.30 p.m. on 6 June 2010.
The device reports were part of the hand‑up brief for the committal proceeding and the index of the exhibits to the brief identified p.15 of Exhibit 2 as relating to the recording of the conversation and p.4 of what is now Exhibit 4 as relating to the photograph of the 22 firearm which was traded on behalf of the accused man.
On the face of it, there is a clear inconsistency between the times contained in those records and the times of the events described by XY. It is always important to avoid the wisdom of hindsight. However, I do not consider in this case that it is an exercise of being wise after the event for me to conclude that there was always a real potential that competent defence counsel might well seek to use the discrepancy, to which I have just referred, in order to undermine the proposition by the prosecution that the recording contained on the telephone, namely Exhibit C, was a recording of a conversation which took place shortly before, during and after the shooting which is relevant to this case.
Thus, in my view, in a general sense it was reasonably foreseeable that the type of attack made by Mr Dane on XY in cross‑examination could well have occurred.
Secondly, and more particularly, I have now had the opportunity to re‑read the transcript of the opening which Mr Dane made to the first jury in this case on 5 June. It is clear that Mr Dane then flagged the issue as to the timing of the recording, and indeed he did so in terms which were quite similar to the way he flagged it in his opening to the second jury two days later.
At p.131 of the transcript of the first trial he said this: “The description of times, I’d ask you to be having an ear out for the times because we do have things locked by time. We have a recording that has to have a start and a finish so there is a time involved in that. We have times in relation to phone calls and things like that, so times are going to be important in this case”.
He then, after interposing a different issue, returned to that issue and said this: “You’ve heard of this recording. After a while you will be able to assess XY and his recording, if it was in fact recorded as he says. But what we ask you to look for is the start and the finish of it. We know it has to start and we know it has to finish, but when did it start and when did it finish? Because events will occur inside the period of recording and if those events aren’t there then maybe it was recorded at some other time, so the recording and when does it begin and when does it end is an issue that you should keep an eye out for”.
Thus, at the latest, it would seem clear that Mr Dane was then foreshadowing the type of attack which he did make in cross‑examination of XY. It is significant that at that stage the Crown did not seek to defer calling XY or to stand the trial down for a short time in order to examine the issue which has now arisen.
It is for those two reasons I do not accept the first proposition, made by Mr Rochford, that the prosecution could not reasonably have foreseen the issue as to timing which has indeed been raised by Mr Dane in his cross‑examination of XY.
The second point made by Mr Rochford was that Mr Dane had had a full warning that the Crown might be able to access evidence of the type which it now seeks to lead from Mr Beardsmore and that Mr Dane took the risk of that being so and nonetheless proceeded to cross‑examine XY as to those times.
It seems from what I was told from the Bar table that Mr Rochford did tell Mr Dane on 8 June that he understood that there was an explanation for the discrepancy as to the times stated by XY in his evidence and the times which are stated in the device reports, namely, that the Nokia phone was operating on European software and that it was set on a default time to Greenwich meantime.
As I stated, XY gave his evidence on 8 June and Mr Dane commenced to cross‑examine him on that date for about an hour, mainly as to matters of prior convictions and the like. He resumed his cross‑examination on the morning of 12 June. The jury had a break at 11.30 a.m. Then in court Mr Rochford told me of the conversation that he had had with Mr Dane and that he was then attempting to obtain evidence to support the proposition which he had stated to Mr Dane. He told me that the Melbourne Nokia shop had apparently closed and thus it was necessary to try to obtain a witness in Sydney.
Mr Dane responded to that proposition by saying that he had considered Mr Rochford’s explanation relating to Greenwich meantime, but he had rejected it, because it did not account for the difference between the times. Thus, he considered it was appropriate for him to proceed.
I note, in passing, that it does not seem that Mr Beardsmore intends to advance in his evidence the explanation for the discrepancy, which was mooted by Mr Rochford.
The question, then, is whether, in those circumstances which Mr Rochford has put to me, Mr Dane took a chance that the prosecution would not obtain the evidence which explains the time discrepancies, and, therefore, whether, if so, the defence is, in a real sense, the author of any prejudice which might occur to it if Mr Beardsmore gave the evidence contained in his statement.
Mr Rochford first submitted to me that, when he raised the matter with Mr Dane, Mr Dane should have totally deferred any cross‑examination of XY. However, in discussion with me, he properly conceded that such a course would have been forensically unrealistic. In my view, it would have been most disadvantageous and indeed inappropriate to have left XY not cross‑examined for a number of days in the trial. He is obviously the key Crown witness. It would be unrealistic to expect the trial to proceed with other witnesses interposed, leaving the evidence of XY unchallenged for some days. Such a course would, in my view, have placed the accused at a significant forensic disadvantage and an unfair one. In my view, Mr Dane was clearly correct to continue with his cross‑examination of XY immediately after XY had completed his evidence‑in‑chief. Realistically, I consider he had no option.
The question, then, is whether Mr Dane could, or should, not have cross‑examined on the issue of the times at which the recording of the conversation and the photograph were taken on the Nokia phone, until this matter was clarified by the prosecution. The resolution of that question depends, at least in part, on the extent to which Mr Dane’s cross‑examination of XY on those timing issues was inter‑related with the balance of his cross‑examination of XY. Indeed, a consideration of that question will also reflect on whether, and to what extent, there would be unfair prejudice to the accused man, if I were to admit the evidence of Mr Beardsmore in the case.
Mr Dane’s cross‑examination of XY was structured and methodical. He commenced by cross‑examining XY on issues relating to his general credibility. In particular, he elicited that XY had agreed to plead guilty to a charge arising out of his involvement in the matters of 6 June 2010 and he had given the undertaking to give evidence on behalf of the prosecution. As a result he received a suspended sentence.
He was also cross‑examined that when he faced two separate subsequent court appearances the police supported his plea for clemency and he received two further suspended sentences for those offences. Thus, Mr Dane made the point in cross‑examination that XY had received a considerable benefit from his cooperation with the prosecution in this case.
He elicited from XY that he was a drug trafficker at the time and that he was addicted to methamphetamine. He elicited from XY that he harboured a deep hatred for the accused man.
All those matters relate to XY’s general credibility, but they were a necessary and important preamble to the cross‑examination which followed. In a sense, they laid the setting or foundation for an attack made by Mr Dane as to the specifics of the description given by XY as to the events of 6 June 2010.
It was to those matters that Mr Dane then turned in cross‑examination on Tuesday, 12 June in this trial. He challenged the evidence of XY relating to which telephone XY used to take the photograph of the 22 weapon. XY stated that he took that photograph on his iPhone and not on the Nokia phone. I interpolate that the Nokia records, and in particular Exhibit 4, are relevant to that issue, because they contradict that aspect of XY’s evidence. They show in fact that the photograph was taken on the Nokia.
Mr Dane, pursuing that topic, then cross‑examined XY as to the number of telephones, which he had, and he pointed out what he said were inconsistencies between XY’s evidence, and the previous statements made by XY, as to the telephones which he had at that time. He then cross‑examined XY as to the precise circumstances, in which he commenced to record the conversation in the vehicle on 6 June. Having done so, he pointed to inconsistencies in the account of XY relating to which vehicle he travelled in in order to exchange the Beretta for the 22 gun after the shooting. That part of XY’s evidence, and those inconsistencies, were necessarily inter‑related with the issue of the time at which XY deactivated the record mechanism on his mobile phone. Thus, again, that issue was tied up with the question of the timing of the conversation recorded on the telephone.
Immediately after that cross‑examination, Mr Dane put to XY that he had, in fact, recorded the conversation, not in the evening of 6 June, but, rather, at 12.06 p.m., and, to make that point, Mr Dane tendered Exhibit 2, to which I have already referred.
He then cross‑examined XY as to the conversations which, in his evidence, XY said he had had with the accused man while the phone was recording. Mr Dane pointed out that none of those conversations, stated by XY in his evidence, can be heard on Exhibit C. Again, that cross‑examination was designed to demonstrate that the recording was not made at the time at which XY said it was. He specifically rounded that conversation up by putting to XY that the recording was not made at that time, and he also put to XY that, contrary to XY’s evidence, XY in fact had learnt that the accused man’s wife was in trouble at McDonald’s before he left his home that night, and not, as XY stated in his evidence, while he was in the vehicle talking to the accused man.
Mr Dane then cross‑examined XY in relation to the clothing he was wearing and the tattoos, which he has on his arm. No doubt it was intended to at least raise a doubt as to whether it was XY himself who fired the shots from the Beretta.
He then cross‑examined XY and put to him specifically that he took the photograph of the 22 weapon at 2.30 p.m., and for that purpose he tendered Exhibit 4, to which I have referred.
The above is just a short analysis of Mr Dane’s cross‑examination of XY, but it is sufficient, I think, to demonstrate two important points. First, it is clear that Mr Dane’s cross‑examination, as to the time at which the conversation was recorded, and the photograph was taken, was substantially more effective by being undertaken, as it was, in the course of the whole of the cross‑examination by Mr Dane of XY, than if Mr Dane had deferred that aspect of his cross‑examination and undertaken it later.
Equally, it is also clear that the balance of the cross‑examination by Mr Dane, that is as to the matters other than timing, was made much more effective by being undertaken at the same time as, and interwoven with, the cross‑examination by Mr Dane as to the timing of the recording of the conversation and the taking of the photograph.
The second point, which is relevant, is that when Mr Dane commenced his cross‑examination, he was not then to know whether the prosecution would ultimately be able to obtain evidence, which either contradicted the time set out in the device reports, or explained the discrepancy between those times and the evidence of XY. Nor was he to know when such evidence might be available to the prosecution. Indeed, he had discounted the possible explanation for the discrepancy which had been given to him by Mr Rochford.
In those circumstances, it is correct that Mr Dane was confronted with a choice between two courses. One course was to do as he did, namely, take the risk as to whether the prosecution could obtain the evidence foreshadowed by it, and proceed to cross‑examine XY as to the timing of the recording of the conversation and the taking of the photograph. The other course was to defer that aspect of his cross‑examination. In a sense, the latter course would have been a safer course, but it would at the same time, as I have pointed out, have deprived the balance of Mr Dane’s cross‑examination of substantial force and effect. In addition, it would have meant that the deferred cross‑examination as to timing, if Mr Dane had later taken it up, would have had significantly less effect than it had by being undertaken as part of the overall cross‑examination of XY.
In those circumstances, I do not accept the proposition, advanced by Mr Rochford, that any prejudice which might occur to the accused man should Mr Beardsmore give evidence, was a product of Mr Dane’s calculated forensic decision to cross‑examine on the issue of timing in circumstances, when he knew that the prosecution was still investigating that matter.
In my view, in the circumstances, Mr Dane was not obliged to compromise the strength and force of his cross‑examination in the manner now contended by Mr Rochford, simply to cater for the fact that the prosecution might, at some stage, gather evidence to explain the discrepancy as to the timing issue.
That conclusion brings me to the question of prejudice. In a criminal trial, the prosecution is, of course, entitled to call evidence, which might explain an apparent inconsistency which has been exposed by cross‑examination by counsel for an accused of a prosecution witness. However, in this case the position is not that simple. First, as I have demonstrated, Mr Dane’s cross‑examination, on the issue of timing of the recording of the conversation and the taking of the photograph, was closely tied with, and interconnected with, the balance of his cross‑examination of XY.
Strictly, if the prosecution were now able to call Mr Beardsmore to offset the point made by Mr Dane as to timing, logically it should not affect the balance of Mr Dane’s cross‑examination. But it must be remembered that that cross‑examination was undertaken in the particular, tense atmosphere of a criminal trial, in which the issue of XY’s credibility is absolutely central.
If the prosecution were now entitled to adduce the evidence from Mr Beardsmore, which is contained in his statement, it would, I consider, have a capacity to unfairly undermine the effect of the balance of Mr Dane’s cross‑examination, apart from the matters of timing. In a sense, it would diminish the force and credibility of the other points, which were sought to be made by Mr Dane in his cross‑examination.
As I have already noted, the point made by Mr Dane as to the timing of the recording of the conversation and the taking of the photograph was, I consider, reasonably foreseeable by the prosecution. As I stated, the prosecution had included in the hand‑up brief the device reports and had identified the specific sections now relied on by Mr Dane as being relevant to XY’s foreshadowed evidence.
As I also stated, Mr Dane in his opening to the first jury in this case did foreshadow that he would be questioning the times at which the conversation contained in Exhibit C was actually made.
In addition, as I have already observed, I consider that Mr Dane made a perfectly legitimate forensic decision to cross‑examine XY on the issue of timing at the time at which he did.
I also observe that the evidence to be adduced from Mr Beardsmore is, of course, new evidence. It comes at a very late stage in the trial, and it relates to a matter of technicality. Mr Dane is counsel of considerable skill and experience, but, nonetheless, he has not had the opportunity to properly consider the matter or indeed to seek evidence on behalf of the accused man which might contradict it or affect it. That matter is perhaps of lesser importance, but nevertheless it is an aspect of prejudice to the accused.
In all those circumstances, I would consider that there would be quite considerable potential prejudice to the accused man in the conduct of his defence, if Mr Beardsmore were now permitted to give evidence, of the type which is sought to be adduced. I reiterate that I do not consider that that prejudice was authored, or made or produced, by the conduct of the defence in this case. The critical question is whether that prejudice outweighs the probative value of the evidence.
The resolution of that question is difficult. As I have observed, the evidence, which is sought to be led on behalf of the prosecution, is important and has probative value. Ordinarily the prosecution should be entitled to adduce evidence of that type in the interests of justice. I am most loathe to shut the prosecution out from calling it, even at this late stage.
However, if the evidence was admitted, in my view it could well occasion quite substantial prejudice to the accused man, which could not be offset by any direction I gave to the jury.
It must be remembered that the accused man faces serious criminal charges. The right of any accused person in our courts to a fair trial is fundamental to our system of justice, and to the values by which it seeks to operate. At the end of the day, I do not consider that the accused man could be said to have a fair trial, if I were to admit the evidence.
In those circumstances, I regrettably reach the conclusion that the prejudice, which would be occasioned to the accused man if the evidence was admitted, does outweigh its probative value. As a result of that, under s 137 of the Evidence Act, I am obliged to rule that it is inadmissible.
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