DPP v Shahi
[2007] VSC 316
•4 September 2007
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1535 of 2006
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RAJBINDER SINGH SHAHI |
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JUDGE: | Teague J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 - 22, 25 - 28 June, 2 - 6, 9 - 10 July 2007 | |
DATE OF REASONS: | 4 September 2007 | |
CASE MAY BE CITED AS: | DPP v Shahi (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2007] VSC 316 | |
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Criminal Law – Ruling – Evidence Admissibility – Segments of Police Interview – Telephone conversations with accused
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A. Tinney | Office of Public Prosecutions |
| For the Defendant | Mr D. McKenzie | Victoria Legal Aid |
HIS HONOUR:
These are the reasons, that I indicated that I would provide, for a number of pre-trial rulings made by me. The rulings were as to the admissibility of certain materials which the prosecution desired to lead at the trial. The trial was of the accused, Rajbinder Shahi, who was presented on one charge. That charge was of the murder of Xavier Salmon on 6 December 2005. Mr McKenzie, who appeared for the accused, indicated to me that there were many matters not in issue. He said that the main issue in the trial would be as to whether the prosecution could establish that the accused had murderous intent. He said that there was also a contested issue as to whether the prosecution could establish that the accused was not acting in self-defence. As the death of the accused occurred after the coming into force of the provisions of the Crimes (Homicide) Act 2005, self-defence issues would be resolved in accordance with the statutory amendments.
On 6 December 2005, the accused was working as a taxi driver. The taxi that he was driving was what is described as a “maxi-taxi”. It had been adapted, and licensed, to take more than the four passengers carried in a normal taxi. The accused agreed to drive a party of eleven male and female passengers, from Elizabeth Street in the CBD to Port Melbourne. The deceased, Xavier Salmon, was one of those passengers. Like the rest of the group, he was a teenager. Like some others in the group, he had been drinking alcohol to excess. There were two incidents during the trip which reflected the rowdiness of the group. One incident arose from one of the group continuing to smoke a cigarette to the concern of the accused. The other arose from some lively words and actions directed at Shane Warne, when his vehicle and the taxi were stopped adjacently at traffic lights. There was rowdiness, but no nastiness, during the trip to Centre Avenue, Port Melbourne. There the taxi stopped to drop off the group. The taxi was facing south in Centre Avenue at that stage.
Trouble arose shortly after the fare owing to the accused was paid to him. The deceased and another male in the group directed some abusive words at the accused. The accused drove off in the taxi. As he did so, he directed some abuse at those who had abused him. Differing accounts were given by the several members of the group and by two other witnesses as to aspects of what followed. There were differences as to the abuse going both ways, and as to the actions of the deceased and his friends, like the throwing of bottles towards the taxi. There was a particularly significant difference as to the course followed by the accused as he was driving out of Centre Avenue. However he came to do so, there was no doubt that the accused, having driven off in a southerly direction, came again within minutes to drive the taxi south in Centre Avenue, approaching the very spot where he had dropped the group off. At that time, the deceased was on the roadway, close to where he had been dropped off. He was in the path of the taxi. He was struck by the left front of the taxi. He suffered injuries from which he died in hospital some hours later. The accused did not stop in Centre Avenue or nearby. Within an hour, he went to a police station in the CBD. There, he reported having suffered damage to the taxi, including to the windscreen. His report led to the making of inquiries, and to his being interviewed by members of the Homicide Squad.
There was no challenge as to the admissibility of the police interview as a whole. However, at the pre-trial hearing, issues were raised before me as to five segments of the questions and answers in that police interview. I ultimately ruled that some parts of the police interview that Mr McKenzie, counsel for the accused, sought to exclude, ought to be excluded, but that other parts ought not. The five segments are as set out below, with those parts ruled not admissible struck through.
| Police | Accused | |
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| 334 | Right, and I suggest to you that, from reading the statements, it’s not correct also | Yeah. Which statements? |
| 335 | The statements from the public | Yeah |
| 336 | That were at the scene | Yeah |
| 337 | What would you say to that | Well, that’s what my statement is, ‘cos there was this guy blocking my way |
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| 413 | Let’s – let’s just – I’ll help you out here | Yeah, I know, yeah |
| 414 | Okay. So, there’s – there’s the bus stop and let’s say that’s the … | Yeah, yeah |
| 415 | Median strip | Yeah |
| 416 | I think there’s some car parking there, and car parking there as well | Yep |
| 417 | The question is, how wide is that area there? | It’s wide enough for one car. |
| 418 | Right | Yeah |
| 419 | Are you able to overtake on that piece of road? | No |
| 420 | If a car was stopped, would you be able to overtake another vehicle? | If there is no car parks in the parking bay. |
| 421 | Alright. Were there any car.., cars parked in that barking bay? | No |
Also raised at the pre-trial hearing was the issue of the admissibility of material which the prosecution desired to lead into evidence through the estranged wife of the accused. The marriage of the accused and his wife in February 2005 in India was one that had been arranged for him by his family. She came to Melbourne on 17 March 2006. She brought with her the four month old daughter she had borne to the accused. The accused was then on remand. For reasons which were canvassed before me, but not in great depth, relations between the accused and his wife, at least from the time of her arriving in Melbourne, were more than strained. The accused was antagonistic towards his wife. In a telephone conversation with her, when they were speaking in their first language, but which he knew was being recorded as he was ringing from prison, he was abusive and threatening. When speaking to her then and later to his mother, he made references to, inferentially, Xavier Salmon. Mr Tinney indicated that he sought to lead one segment of each of two conversations. I now set out a short version of what the accused is said to have said, based on extracts from the translations.
First, in the course of the conversation with the wife:
A. Hello, you the daughter of a mother-fucker. I’ll kill every one of your family….the tension you are giving to my mother.
B. I’m telling that you are not doing any good for yourself. For you or your family. It doesn’t matter to me. Even if I am hanged. I murdered one, I can kill ten more. Remember that. I killed one. I can kill ten more because it is the same punishment I will get.
C. If something happens to my mum, I will kill each and every one of you and cut you all…It won’t be an easy death.
D. Even if it is being recorded, I don’t care. Fuck the recording. Fuck the police. Understand. I don’t care saying it to you openly. I will kill each one of you. OK. Remember that. Just don’t think I am only saying that for the sake of it. I don’t speak, that’s why that boy died. He thought that I am only speaking – I can’t dare to kill him. OK. He was like you who thought that I am only speaking, just speaking. I can’t do anything. OK. But then he came to know later on. It does not matter to me. I can live all my life in the jail. I don’t care.
Secondly, in the course of the conversation with the mother:
A. Mum, whatever she did, I’m telling you straight. See, that boy died. Now, whatever repentance is that he has died, he should have thought before, when there were arguments going on, when the abuses were being exchanged: I should not do it. It would be better not to do so. The result of this can be bad.
B. I don’t give chance to any one.
C. When I think that matter is getting worse, then I do something before some one does anything to me
D. Nothing to me. For me, 4-5-7 years maximum. The other one lost his life (laughingly). It did not affect me.
Shortly after those conversations, and in the company of the mother, the wife of the accused had visited him when he was on remand. The prosecution sought to lead in evidence part of what the wife said that the accused had said to her during such a visit. Put shortly, it was to the effect that he did not know how the police knew what happened, but the police had got it right.
It was common ground that I was being called on to exercise my discretion to exclude material on either or both of two discretionary bases, in short that to permit the evidence to be led would be relevantly unfair or would result in prejudicial effect outweighing the probative value, or both. Neither Mr McKenzie nor Mr Tinney drew any particular authorities to my attention. I took the applicable principles to be as set out in The Queen v Swaffield, Pavic v The Queen (1997-8) 192 CLR 159 at [52]. In applying the last noted of those principles at [52], I have also noted what was said by McHugh J in Festa v The Queen (2001) 206 CLR 593 at [51]:
“…It is only when the probative value of evidence is outweighed by its prejudicial effect that the Crown can be deprived of the use of relevant but weak evidence. And evidence is not prejudicial merely because it strengthens the prosecution case. It is prejudicial only when the jury are likely to give the evidence more weight that it deserves or when the nature or content of the evidence may inflame the jury or divert the jurors from their task.”
I was not prepared to accept that questions 334 to 337 and 413 to 421 in the police interview should be excluded. As to neither segment could I assess that there was any relevant unfairness. The probative value may not be great, but there is some, and I have trouble seeing any relevant potential prejudice. At 335, the questioner could have more appropriately referred to “other witnesses” than “the public”, but the response was consistent with other answers. The question did not mislead. The questions from 413 onwards were directed at clarifying aspects of a diagram that had been drawn by police on a whiteboard. It was clearly a rough diagram not to scale. I viewed the recorded interview. Mr McKenzie argued that in the context, the segment had the potential to be unfair to the accused. I was not able to perceive any real risk of unfairness.
I was prepared to rule out the other three segments. At 215, the framing of the question: “you say you had to run him down “ was unfair. It was an overly short and overly prejudicial paraphrasing of what the accused had said as to finding a man in his path just after another man had blocked his way out. The questions and answers from 361 had a potential for prejudice, and there was minimal probative value to the answers. The questions which led to the answer at 379 were prejudicial in that the police added a further dimension in “jumped out” to what the accused had consistently referred to as the pedestrian “coming out”. I concluded that it would be unfair to permit that segment to remain.
After carefully considering the terms of the telephone conversations from prison and of the statement from the wife of the accused, and after hearing reasonably extensive argument from counsel, I ruled that nothing of either should be led. I relied substantially on both discretions. There was very substantial potential for prejudice in the vitriolic exchange between the accused and his wife. I considered it possible, but unlikely, that that potential might have been substantially tempered by cross-examination and by the leading of other evidence aimed at providing the context to the making of the accused’s comments. There being no issue that Shahi’s actions killed Xavier Salmon, there was a troubling potential for considerable prejudice in permitting to go into evidence that he said: “I murdered one, I can kill ten more”.
The later conversation with the mother was of a different kind, and more reasoned, but still with an overly substantial potential to be prejudicial in the Festa sense to which I have referred above. As to the comments about the police getting it right, which the wife of the accused says that she heard him make on the prison visit, they were too ambiguous to have any significant probative value. In my opinion, the leading of that material would potentially give rise to an unacceptably high risk of additional prejudice.
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