DPP v Kalwig (Ruling No 1)
[2009] VSC 312
•15 July 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No 1404 of 2008
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DAVID LAWRENCE KALWIG |
Ruling No 1
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JUDGE: | WEINBERG J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 July 2009 | |
DATE OF RULING | 15 July 2009 | |
CASE MAY BE CITED AS: | R v Kalwig (Ruling No 1) | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 312 | |
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CRIMINAL LAW – Relevance – Crown seeks to lead evidence of mobile telephone call having been connected to accused’s phone at about time of fatal collision – CityLink records show exact time of collision - Telstra records show call connected seven seconds after collision – Both CityLink and Telstra clocks shown to be accurate - Jury to be invited to speculate as to possibility that one or other set of clocks must have been incorrect – Tenuous basis for any such conclusion – Evidence held to be irrelevant – Alternatively, probative value slight and significantly outweighed by potential prejudicial effects
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr P N Rose SC and Ms A C Fox | Office of Public Prosecutions |
| For the Accused | Mr G J E Steward and Mr T Kassimatis | Tony Hargreaves & Partners |
HIS HONOUR:
In its draft opening, the Crown indicated that it proposed to lead evidence that the accused had with him on the morning of the Burnley Tunnel collision a mobile phone, and that Telstra records showed that his employer, Mr James Clark, telephoned him at 9:54:31 am and the call connected. The Crown wanted Mr Clark to be called to say that he had telephoned the accused to warn him about the broken-down Sterling truck in the left lane. Mr Clark would say that although no one answered when the call was connected, he could hear what he described as “engine braking”, and assumed that the accused was taking evasive action. As a result, Mr Clark hung up after only about five seconds.
The accused’s mobile phone was destroyed by the fire that consumed his truck after the collision. However, the Crown proposed to lead evidence from Telstra in relation to Mr Clark’s call having been made and connected. There would also be evidence to the effect that the Telstra clock, which showed a connection at 9:54:31 am, and the CityLink tunnel clock, which showed the collision occurring at 9:54:24 am, “were not synchronised”. It was never explained precisely what the Crown meant by that last statement. The evidence was that both clocks were checked after the collision, and both were said to have been operating accurately.
The Crown proposed to submit that the only inference that could be drawn from Mr Clark’s evidence was that what he had heard, namely the “engine braking”, had taken place at the moment of, or immediately before, the collision. Unless the evidence could sustain that proposition, the fact that a call was made, and answered, could not conceivably be relevant to any issue in this trial.
However, even if a call had been made at the moment of, or immediately before, the collision, that fact would be irrelevant unless it could be established that the accused had intentionally, and deliberately, answered his mobile telephone.
In that regard, the Crown found itself in the position of being unable to invite the jury to draw that conclusion. It did so in the face of the accused’s own statement to the police that he had not heard his mobile phone ring, and had not answered it. He told police that, on occasion, various items that he kept in the same pocket as the phone, including a pocket knife, had activated it and that this could explain how it appeared to have been answered.
Faced with that answer, and no evidence to controvert it, the Crown foreshadowed, in its draft opening, a copy of which was provided to the defence well in advance of the trial, that it would say to the jury:
As to whether Mr Kalwig heard the phone ring or intentionally answered the phone the Crown cannot say and you must not speculate about this issue.[1]
[1]Emphasis added.
By taking that position, the Crown was specifically eschewing any reliance upon an argument that the accused had heard his mobile phone ring, intentionally answered it, and was thereby distracted at a critical moment only seconds before the collision.
Of course, one difficulty with any such argument lay in the fact that the Telstra records showed that the call was connected some seven seconds after the collision, assuming, as the evidence showed, that both the Telstra and CityLink clocks were accurate. The Crown would have found itself having to explain how evidence concerning a call made after the collision had occurred could possibly be regarded as relevant.
However, that was by no means the only difficulty confronting the Crown. The seven-second discrepancy might be explained on the basis that, despite the evidence to the contrary, one or other of the two clocks must have been operating inaccurately on the morning in question. Of course, that would be largely conjectural, and based entirely upon the proposition that Mr Clark’s evidence could be taken as showing that the call had been answered before the collision.
Mr Clark, however, acknowledged that he could not really be confident of what he had heard. Indeed, so it was submitted, the effect of his evidence was that he could not reliably say whether any sound of engine braking that he might have heard, assuming that that was what he did in fact hear, came from the accused’s own truck before the collision, or some other vehicle applying its brakes close by immediately after the collision.
The Crown, recognising these difficulties, accepted in its draft opening that it could not say whether the mobile telephone call made by Mr Clark played any role in the crash. Indeed, in para [46] of that draft opening, the Crown frankly acknowledged that it could not establish whether the mobile call “played any role in the crash”.
Notwithstanding that concession, the Crown submitted that evidence of the making of the call, and the fact of its connection, were still admissible. The Crown argued that this evidence showed that the accused had been using his engine brakes moments before the collision.
However, even assuming that the Crown wished, for some legitimate forensic reason, to establish that the engine brakes were engaged moments before the collision, it had ample evidence available to it to do so. Indeed, it was the accused’s own case that he had been applying the engine brake throughout his trip through the tunnel. He said this to the police in his videotaped record of interview. If the Crown sought to challenge the truthfulness of that aspect of what he had said to the police, it could hardly have assisted to have Mr Clark’s evidence, which would simply have confirmed what the accused himself had said.
It follows that Mr Clark’s evidence of having heard engine braking would add nothing of any weight to the Crown case as such. The danger associated with admitting that evidence, despite its lack of any probative value, lay in the possibility that the jury would speculate, contrary to the Crown’s express concession that they must not do so, that the accused had answered the phone before the collision, and had thereby become distracted.
Given the position taken by the Crown in its draft opening, the evidence concerning the mobile phone call was plainly irrelevant.[2] At best, that evidence would be tenuous and remote. However, even if it could be regarded as logically relevant, its probative value would be slight, and significantly outweighed by its likely prejudicial effects. It would follow that the evidence should be excluded in the exercise of judicial discretion.[3]
[2]See R v Stephenson [1976] VR 376.
[3]R v Christie [1914] AC 545.
Late in the Crown’s oral submissions, the learned prosecutor, recognising it seems the weakness of the Crown’s position, sought to resile from his written concession that the evidence could not sustain a finding that the accused had intentionally answered his mobile phone. He indicated that he would now be prepared to argue the exact opposite.
The new case thus presented would have been based, at least in part, upon an allegation that the accused had lied to the police when he denied having answered the phone. Presumably, the Crown would then argue that he had thereby demonstrated a consciousness of guilt.
That was a remarkable change of position on the part of the Crown. A carefully considered submission, prepared in writing well in advance of the trial, that it would not be open to the jury to come to a particular conclusion was to be withdrawn, and replaced by a submission to the exact contrary. Plainly, this would have resulted in serious prejudice to the defence, who were understandably unprepared to meet what would then have been a very different case. Allowing the Crown to depart from its considered opening would almost certainly have necessitated a lengthy adjournment of the trial. That would have been unfair to the accused, as well as the many witnesses who were to be called. More importantly, perhaps, it would have entailed permitting the Crown to embark upon a course that had little ultimate chance of influencing the jury, and was based upon a degree of speculation and conjecture.
For the reasons set out above, I ruled that no evidence ought to be led regarding Mr Clark’s call to the accused’s mobile phone, or to its having been ostensibly “answered”. However, at the request of the prosecutor, I reserved to the Crown the right to apply to cross-examine the accused as to credit, if he ultimately gave evidence, in relation to the answers he gave to the police regarding the mobile phone connection.
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