DPP and Samuel Peter Smith
[2014] VCC 377
•2 April 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-00821
| DPP |
| v |
| Samuel Peter Smith |
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JUDGE: | Cannon | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 April 2014 | |
DATE OF RULING: | 2 April 2014 | |
CASE MAY BE CITED AS: | DPP and Samuel Peter Smith | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 377 | |
RULING No.2
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Subject: CRIMINAL LAW
Catchwords: Ruling – s.137 Evidence Act 2008 – Complainant’s evidence as to reason for withdrawing complaint – Admissibility
Legislation: Evidence Act 2008
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M. Hennessy | Mr C. Hyland, Solicitor for Public Prosecutions |
| For the Accused | Ms F. Todd | Robert Stary Lawyers |
Her Honour:
1 I have been asked to give a preliminary or advance ruling as to what the complainant in this case can and cannot say, if cross-examined in respect of her reason for withdrawing her complaint against the accused at the end of her first police statement. On page 1 (Depositions 101) of that statement dated 4 November 2012, which is made the day after the alleged offences, she says: "I know Sam's been in trouble with the police before because I know for a fact he was arrested with my brother last year. Apparently he choke held two people and put them in hospital for five days. He also told me that he has been charged with attempted murder for one of them. I know him to be a violent person but he has never been violent towards me." She then says that he had always treated her well and that in the last two or three months he had passionately kissed her.
2 The complainant goes on to detail allegations - consistent with allegations of rape against the accused and said that they had occurred on 3 November 2012. The statement runs to nearly seven pages but on the last page she indicates that she does not wish to proceed with her complaint against the accused because she is concerned for her own safety. She also says that she does not want people to know what happened to her and that she did not think she was capable of going through the court process. She said that she did not want her family to get involved, that the repercussions of this would be something she did not think she could deal with at that time.
3 The complainant was cross-examined in respect of her withdrawing her complaint at the committal hearing and in re-examination, when squarely asked why it was that she did not wish to proceed at that time, she said "I was scared of how Sam would react because he had told me he's been done for attempted murder in the past and I was scared that he would come after me if I got him into trouble” (Depositions, p.60, lines 21 to 29).
4 I am told that it is not the case that the accused has ever been charged with attempted murder, and the informant would confirm this in evidence if required to do so. It is the reference to the accused telling the complainant that he had been done for, or charged with, attempted murder, which is the subject of this ruling.
5 The Crown concedes, appropriately, that evidence that the complainant might give as to her knowledge of the accused's violent background or reputation, to which I have just referred (at p.1 of her first statement), is not admissible on any view of matters. However, the Crown says that the complainant ought be permitted to give evidence as to what she says the accused told her; that is, that he had been ‘done for’ or charged with attempted murder, if the topic of the withdrawal of complaint is introduced by defence in cross-examination. Defence say that she ought not.
6 Defence submit that the probative value of such evidence is outweighed by the danger of unfair prejudice to the accused, pursuant to s.137 Evidence Act 2008, and therefore I ought refuse the prosecutor adducing such evidence. Although discussion proceeded on the basis that the complainant may wish to give such an answer in the course of cross-examination, it seems to me that based on what occurred at the committal hearing, what has been said in discussion here, and bearing in mind the relevant provisions of the Evidence Act, I am really dealing with a situation where the topic of withdrawing her statement is raised in cross-examination, and the prosecutor wishes to re-examine in respect of this matter. However, it may be the case that in this trial the issue arises in cross-examination, if a question is asked of the complainant, which, (assuming her answer to be responsive) would involve her giving an answer as to the reason she feared the accused. In either case it is important for the parties and for the complainant to know what she may or may not say ahead of time. It seems to me that s.137 of the Evidence Act would still apply to the cross-examination scenario to which I have just referred, in any event, as it is the prosecutor who would be seeking to adduce such evidence, notwithstanding that it would be defence who were asking the questions.
7 Before going any further, it is useful to refer to the matters in issue in this case. The allegations founding the charges on the indictment are that on 3 November 2012 the complainant was vaginally raped by the accused on two occasions, although a number of uncharged occasions of sexual penetration, consistent with rape, are also alleged. I understand that the Crown has recently changed their attitude in relation to this particular aspect, and that will be the subject of discussion at a later time.
8 The accused’s defence is that any sexual activity was consensual and/or he believed that it was. Therefore the elements in issue in this trial are the third and fourth elements of rape which, of course, the Crown must prove beyond reasonable doubt. In referring to the accused's defence, in no way do I derogate from the position that the onus of proof is always on the Crown to prove those elements.
9 The central witness for the Crown is the complainant, and therefore her credibility and reliability will be central matters in issue. Certainly the fact of, and the complainant's reasons for withdrawing her complaint against the accused are matters which could substantially affect her credibility.
10 I now turn to a brief chronology of matters in this case. It would appear not to be in dispute that the complainant had known the accused for some time and was romantically attracted to him in the period leading up to the alleged offences. They had kissed passionately on a few occasions. On 3 November 2012, just after midnight and hours before the accused and his friend, Tyson Ford, collected the complainant from her home, the accused texted her, asking if she wanted to stay at his place with Tyson and his – (I think that is Tyson's) friend, Sarah. The complainant replied via text, "Ehhh bad time of the month though", to which the accused responded, "So wat I dnt want sex". When I say that these were the exchanges between the accused and the complainant, I do not understand that there is any dispute that they were the authors of these text messages.
11 There were further texts between the accused and the complainant of a friendly nature. The complainant is expected to give evidence consistent with being vaginally raped by the accused after arriving at his home at 5 am. She would then give evidence of a further occasion of sexual penetration, which the Crown had referred to as uncharged conduct, but now seeks to refer to as part of a course of conduct in relation to Charge 1.
12 At about 8 am, according to the complainant, she went to sleep on the end of the accused's bed. According to the prosecution opening, she would say that she was afraid to leave and had no way of getting home until the accused's friend, Tyson Ford, was ready to take her home. She would say that at about 1 pm that day the accused sexually penetrated her again, despite her protests, giving rise to Charge 2. According to the Crown opening, as it has been to date, the accused then engaged in uncharged sexual penetrations, which are consistent with further allegations of rape. Again, I have received correspondence from the Crown, with defence copied in, that it is intended that the further uncharged sexual penetrations actually be subsumed under Charge 2 as a course of conduct. As I have said previously, a discussion about that particular issue will be conducted at a later time today.
13 According to the complainant, at 2.30 pm on 3 November 2012 she sent a message to a friend, Jo Oxley, to pick her up and this is what occurred. She then complained to her friend, Jo Oxley, that she had slept with the accused and she did not want to. According to the Crown opening, she was distressed when she conveyed this to her friend.
14 Subsequently, that same day, the complainant went to Dandenong Police Station. Police material indicates that the complainant attended the police station at about 9.15 pm on 3 November. It appears in an early note made by police that the complainant told them, amongst other things, that the accused had been done for manslaughter (depositions 132).
15 At 10.20 pm she was medically examined by Dr De Boos, and among other things she told Dr De Boos that she was very afraid for her safety, having given answers to a number of direct questions which concerned aspects of the alleged offending. It is true that she did not say, as recorded by Dr De Boos at least, as to the source of her fear, that is who that was directed to.
16 After the forensic medical examination on that night at 11.30 pm, according to police notes the complainant tells police that the clothes she wore at the time of the alleged offences were at her father's house, but that her Dad and brother were there and if they found out they would go after the suspect. Again, this was not referred to in argument yesterday but these notes precede those to which I was referred and I regard these matters as having some pertinence to what I must decide.
17 In relation to these previous notes (131-132), I have heard from Ms Todd this morning that really they do not add to the arguments or submissions she has previously made and she maintains those submissions.
18 In any event, it appears that at about 11.30 pm on 3 November, the complainant went home and she re-attended the police station the following day at 1.45 pm. According to police notes, it was then that she said that she did not want to make a police statement or proceed, that she did not want to do this the night before but that her friend Jo had forced her to. She said that she cannot stand up in court, that she did not want her family to go through this, that her brother will hit her and will not care about intervention orders The note goes on to record the complainant as saying that her family scares her more.
19 There is then a notation that options were discussed which would appear to address her fears. Then a 2.35 pm she commenced her statement, completing it at 4 pm. She signed this statement at that time, and of course the final part of the statement contained the passage where she said she did not wish to proceed with the complaint as she was concerned for her own safety and she then goes on to give some further reasons to which I have previously referred.
20 According to the complainant, after this first statement was made, her brother did find out about the allegations. Subsequently on 7 November 2012 she made a second statement in which she said that she was now prepared to proceed with the complaint against the accused, saying that she had the support of her mother. She also said that no one had pressured her to do so. In the second statement she goes on to clarify, or add some details to the account she gave in her first statement.
21 The committal hearing took place on 30 April 2013.
22 At that hearing the complainant adopted each of her police statements as being true and correct. When cross-examined by Ms Todd, who also appeared at the committal hearing on behalf of the accused, she agreed that she felt certain that she did not want to proceed with the complaint when she attended the police station prior to making her statement.
23 She agreed that she felt pressured by a lot of people at that time but said that at that time her brother did not know. She also said that as far as her family went only her mother knew of the allegations, and that she thought she had no support to go through with it, that she did not want anyone to know. She felt pressure from her friend Jo and from the police, which as I understand it is in relation to her going ahead with the complaint, although she said the police made it clear that it was her choice as to whether she wanted to proceed, which is why she chose not to go ahead at that time.
24 There seemed to be an intermingling in the questions the complainant was asked at that point in cross-examination and with the complainant’s answers- That is, an intermingling between her mindset not to pursue a complaint against the accused and pressure to make a statement or proceed with the matter.
25 Understandably Ms Todd, who as I have said has been defence counsel throughout, never squarely asked in cross-examination why it was that the complainant did not wish to proceed, although the complainant refers to aspects of this in the course of her evidence. She does not refer to her fear of the accused in the course of her answers in cross-examination but she is not given the chance to squarely address this. No doubt this is why the prosecutor at the committal hearing asked her in re-examination as to why it was she did not wish to proceed at that time. Further, the complainant had adopted her police statements as true and correct, which meant that, in effect, she had already given evidence in chief that she was afraid of the accused, and that he had told her that he had been charged with attempted murder.
26 Defence submit that the complainant, (if the topic of withdrawal of her statement is raised) ought be confined to saying that she was afraid of the accused coming after her, but ought not be permitted to say what her reason for this was as at the time she said she wished to withdraw her complaint. Defence argue that this aspect of her evidence ought be excluded pursuant to s.137 Evidence Act 2008, saying that its probative worth is outweighed by the danger of unfair prejudice to the accused. Notwithstanding the Crown's preparedness to lead evidence from the informant that the accused has never been convicted or charged with attempted murder, (or indeed manslaughter), Defence are concerned that even if the informant were to give evidence that the accused had never been so charged, and despite any direction I might give, there was a danger of unfair prejudice of the mention of such a serious matter.
27 Further, they argue that the informant's proposed evidence in respect of this, which would be of such a confined or particular nature, that there was a danger that the jury would speculate as to the accused's criminal record in any event. In essence, defence argue that the effect of the informant giving such particular evidence, in circumstances where defence could not adduce that the accused had no criminal history, would be to invite dangerous speculation that although the accused may not have been charged or convicted of attempted murder, (or manslaughter for that matter) he had probably been charged or convicted of other offences.
28 Defence acknowledge that they do want to cross-examine the complainant about withdrawing her police statement. In discussion yesterday, Ms Todd submitted that this aspect "Goes to perhaps her own uncertainty about whether the matters that she had given to the police were the full truth. Whether she'd been pressured to get there by her friend, Jo Oxley, which is, on the evidence, a real issue". T.26
29 Further, Defence would be putting to the complainant that the reason she changed her mind and pursued the matters was out of fear of her brother, who, she has admitted, she was frightened of, especially if he had ever learnt that she’d had a relationship with any of his friends, including the accused. The defence say that in relation to this aspect they are already disadvantaged because one of the reasons the complainant subsequently decided to proceed with the matter was because the police told her there were other complainants, something which will not be adduced by either party in these proceedings for obvious reasons.
30 In my view, the question as to why it was the complainant proceeded with the matter is a separate matter to the question of why it was she did not wish to proceed with her complaint at an earlier point in time although I do understand that defence is somewhat hamstrung in respect of the first mentioned question.
31 Mr Hennessy submits that if defence raised the topic of the complainant's withdrawal of her complaint, a matter he does not seek to adduce in evidence-in-chief (and nor should he), the complainant ought be able to fully answer the question to the extent that she did in re-examination at committal and not be made to give a sanitised answer which would be a mere assertion that she was in fear of the accused or afraid that he would come after her if he found she had gone to the police. He submitted that to so constrain her evidence, would be to create a totally artificial atmosphere whereby defence would seek to paint a picture of consensual sexual activity, supported by the fact that the complainant wished to withdraw her complaint of rape, depriving the jury of flesh on the bones of her assertion that she was afraid of the accused coming after her if she proceeded with the complaint.
32 In my view, it is clear, from all of the material, that from a very early stage the complainant was stating that she was afraid of the accused and what he might do if she went to the police. It is clear that her stated reason for being afraid was that she believed he had been charged with or convicted of a very serious offence. This was something that was clearly operating on her mind, if her evidence were accepted, as at the time she told the police she did not wish to proceed with the complaint. She also cited other reasons for not wanting to proceed with the matter as previously referred to.
33 Whilst there is a difference between being charged or convicted of manslaughter and of being charged or convicted of attempted murder, they are certainly of the same serious nature and have a prejudicial aspect to them. Ms Todd, quite sensibly, indicated today that she did not really see that there was much that turned on the point as to the discrepancy between apparent mention by the complainant of manslaughter then attempted murder in the context of a 19 year old non-lawyer, who was talking about such things.
34 However, in circumstances where it would be put by defence that the complainant willingly had sex with the accused and that she withdrew her complaint because she was uncertain as to the truthfulness of what she had told the police, a bald assertion by the complainant that one of her reasons was that she was afraid the accused would come after her would be a deprived of a good degree of substance that the complainant could otherwise give it. She would be denied the opportunity to give a complete account as to her state of mind as at the time of withdrawing her complaint on 4 November 2012
35 The probative value of such evidence in the context of an attack upon the complainant's credibility is of some significance, in my view, and in conjunction with the evidence that the informant would give and directions I would give forbidding speculation and prejudicial reasoning, I do not consider that there is a danger of unfair prejudice to the accused. I would not exclude the evidence pursuant to s.137 of the Evidence Act
36 I indicate that in a further bid to contain the prejudicial aspect of such evidence, however, subject to hearing from defence in respect of this, immediately following the complainant's evidence, I would be willing to call upon Mr Hennessy to indicate that the Crown does not say that the accused had ever been charged with or convicted of attempted murder or manslaughter, if that is mentioned in evidence, but simply relies on the evidence as to what the complainant says the accused had previously told her and as one of the matters said to be operating on her mind as at the time she withdrew her complaint.
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