Holbrey v The Queen
[2002] WASCA 147
•7 JUNE 2002
HOLBREY -v- THE QUEEN [2002] WASCA 147
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 147 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:176/2001 | 20 MAY 2002 | |
| Coram: | MURRAY J PARKER J MILLER J | 7/06/02 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused | ||
| B | |||
| PDF Version |
| Parties: | BRIAN HOLBREY THE QUEEN |
Catchwords: | Criminal law and procedure Evidence of videotaped interview by police with accused not led as part of Crown case Crown prosecutor cross-examined accused alleging that he told lies during interview Crown prosecutor previously advised would cross-examine on "inconsistencies" Whether process unfair Whether jury should have been discharged |
Legislation: | Nil |
Case References: | Edwards v The Queen (1993) 178 CLR 193 Zoneff v The Queen (2000) 200 CLR 234 Miles v The Queen [2000] WASCA 364 R v Rugari (2001) 122 A Crim R 1 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : HOLBREY -v- THE QUEEN [2002] WASCA 147 CORAM : MURRAY J
- PARKER J
MILLER J
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Evidence of videotaped interview by police with accused not led as part of Crown case - Crown prosecutor cross-examined accused alleging that he told lies during interview - Crown prosecutor previously advised would cross-examine on "inconsistencies" - Whether process unfair - Whether jury should have been discharged
Legislation:
Nil
(Page 2)
Result:
Leave to appeal refused
Category: B
Representation:
Counsel:
Applicant : Ms C S Amsden
Respondent : Mr R E Cock QC
Solicitors:
Applicant : Director of Legal Aid
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Edwards v The Queen (1993) 178 CLR 193
Zoneff v The Queen (2000) 200 CLR 234
Case(s) also cited:
Miles v The Queen [2000] WASCA 364
R v Rugari (2001) 122 A Crim R 1
(Page 3)
1 MURRAY J: On 22 and 23 November 2001, the applicant was tried by Deane DCJ and a jury on an indictment charging him with three offences of threats to kill three different people and a charge of assault occasioning bodily harm committed upon one of those people. All the offences were alleged to have been committed at the same time and place on 27 November 2000. The applicant was convicted and sentenced to an aggregate term of 15 months imprisonment, the service of which was suspended for 24 months.
2 He seeks leave to appeal against the convictions which he asks to be quashed. He seeks a retrial. There is one ground of appeal. It is:
"The video taped record of interview would not have been admissible and a miscarriage of justice occurred during the trial because of the manner in which the Crown Prosecutor led evidence from it.
PARTICULARS
(a) The Crown Prosecutor did not introduce the Applicant's video taped record of interview into evidence because of the involuntary and highly prejudicial nature of it.
(b) The Crown Prosecutor then conducted a cross-examination of the Applicant based on alleged 'lies' contained in the video taped record of interview.
(c) There was no direction that could be given by the Trial Judge to correct the unfairness to the Applicant in the circumstances."
3 The applicant had been interviewed by two police officers on the date of the offences, 27 November 2000. The interview was recorded by video at Cannington police station. In the course of preparation for trial there was some discussion between counsel about the admissibility of the interview in its entirety. It appears that prosecuting counsel agreed with defence counsel that the prosecution would not seek to introduce the video into evidence as part of the Crown case. As counsel said to Deane J, "It is an extremely prejudicial video and would have been impossible to edit." By that I take him to mean that portions of the interview were accepted to be either inadmissible or subject to exclusion on the ground that the prejudicial effect of the evidence would outweigh its probative value.
(Page 4)
4 However, to confirm their final agreement, prosecuting counsel sent a facsimile transmission to defence counsel shortly before the trial was due to commence, saying that as defence counsel did not want the applicant's video played, "I will not lead it in evidence but may cross-examine on any inconsistencies." Again, by that I take him to mean that if the applicant elected to give evidence in his own defence at the trial and gave evidence which was materially inconsistent with statements made to the police, counsel would, in accordance with the Evidence Act 1906 (WA), s 21, put those prior inconsistent statements to him. In my opinion the letter could not be read as giving an undertaking not to put to the applicant that he had lied to the police, or indeed in his evidence at trial. Whether it would be proper to do so would depend on the nature of any inconsistency which emerged and the response of the applicant to questions on that topic.
5 The applicant did give evidence in his own defence at the trial and he was cross-examined about the parts of his evidence which were inconsistent with what had been said to the police, although both stories were consistent with the applicant's innocence of the charges against him. It was put to the applicant that he was telling lies in his evidence at trial and he had told lies, albeit different lies, when he was interviewed by the police. To my mind, in cross-examining in that way, counsel did nothing which ought to have taken the defence by surprise.
6 In essence, the applicant's defence was that he had visited the house of one of the complainants, his girlfriend or former girlfriend, with whom he had had a child. He went there to see the child, a little girl, but she was away and so the applicant sat and drank with his former girlfriend. Later, two other people, a man and a woman, who were alleged victims of offences committed by him, arrived at the house. A heated argument developed between the applicant and his former girlfriend. The applicant denied that he made any threats to kill anyone. He said that during the argument the male complainant intervened and struck him. He struck a blow in self-defence and was not guilty of any assault occasioning bodily harm.
7 When interviewed by the police, the applicant had said that the male complainant threatened to kill him. He denied, when speaking to the police, that he had been inside the house at all. He agreed in evidence that these statements were untrue. He said that he was befuddled by drink, confused and that he formed the view that the police were not listening to his story. His explanation for the untrue statements was that he was not
(Page 5)
- thinking clearly. He wished to terminate the interview (although he did not say so), be admitted to bail and leave the police station.
8 Defence counsel took no objection to this line of cross-examination and in my opinion rightly so. It was an appropriate and proper way to test the evidence of the applicant by cross-examination. Prior to counsels' final addresses, Deane J raised the question whether her Honour should give to the jury a direction upon the evidentiary value which lies told by the applicant out of court, or indeed in court, might have; a direction of the type approved by the High Court in Edwards v The Queen (1993) 178 CLR 193.
9 In essence, the question raised was whether a complete direction of that kind should be given or whether this was a case where lies told, if such they were, not being relied upon the Crown in the sense that they were not proved as part of the Crown case, the direction to be given should be of the more limited kind approved by the High Court in Zoneff v The Queen (2000) 200 CLR 234. A direction of that type is merely concerned with the effect the lies, if the jury thinks lies were told, may have on the credibility of the applicant as a witness, without being evidence of guilt in the way that a lie may be in the circumstances discussed by the High Court in Edwards. Defence counsel then expressed her entire agreement with the tentative conclusion of the trial Judge that a full direction of the kind envisaged in Edwards ought to be given.
10 She was in my opinion clearly right to do so. Although it did not start out in this way at the time of the cross-examination of the applicant, it is clear, in my view, that as the evidence emerged, the matter went beyond mere inconsistencies or even the telling of deliberate lies of a kind which the jury might conclude were destructive of the applicant's credibility. The further inference open to the jury was that the response of the applicant to the allegations put by the investigating police officers was not only to reject in their entirety the suggestion that he committed the offences but, recognising what had occurred at the house, he went further, at one point denying that he even entered the house and at another attributing to the male complainant the threat to kill and assault of which it was suggested by the investigating police he was the perpetrator. In short, if those statements were found to be not only untrue but lies, they were of a kind which might be regarded as themselves corroborative of the truth of the evidence of the complainants and capable of supporting a conclusion by the jury that they were told to deflect the inquiry from the applicant's own guilty implication in what occurred.
(Page 6)
11 In argument before us counsel for the applicant approached the matter quite differently. She submitted that the direction taken by the trial was unfair. The unfairness is said to arise in this way. The applicant was 26 at the time of the trial. He had a substantial criminal history dating back to 1993. His first conviction was sustained just after his 18th birthday. He had on a number of previous occasions been sentenced to terms of imprisonment. Most recently, on 7 April 2000, he had been sentenced for two offences of breaching violence restraining orders and by the District Court for an offence of unlawful wounding, to a term of 18 months imprisonment. He would have been eligible for parole in early October 2000 and he was presumably on parole on 27 November 2000 when these offences were allegedly committed.
12 Counsel says that the true explanation for the admitted lies told to the police was that the applicant did not wish to reveal to the investigators that he was on parole. I presume the proposition is that he told lies, not only denying his implication in any offence but making allegations against the male complainant in an attempt to destroy the credibility of the complainants in the eyes of the police investigators, because he was concerned that he would not be believed if he told the simple truth and was known to be a previous offender on parole at the time. But his evidence at trial was, of course, a denial that he committed the offences. The argument does not make sense to me and in any event there is no evidence that these were the thought processes of the applicant; nor, if they were, would that provide any ground for the view that a miscarriage of justice has occurred in that the applicant has been deprived of a fairly open chance of acquittal. In my opinion, there is no substance in the ground of appeal and the application for leave to appeal should be refused.
13 PARKER J: For the reasons now published by Murray J I agree that leave to appeal should be refused.
14 MILLER J: I have had the opportunity of reading in draft the reasons published by Murray J. I am in agreement with those reasons and have nothing further to add.
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