R v AA, AC, Ss, Tatchell and Wildsmith [No 1]

[2009] NSWSC 1414

CITATION:	R v AA, AC, SS, Tatchell & Wildsmith [No 1] [2009] NSWSC 1414
HEARING DATE(S):	19-21/10/09 16-27/10/09 30/10/09 2-6/10/09 9/11/09
JUDGMENT DATE :	23 November 2009
JURISDICTION:	Common Law Criminal Division
JUDGMENT OF:	Kirby J
EX TEMPORE JUDGMENT DATE:	9 November 2009
DECISION:	Leave given to cross examine under s 38 Evidence Act 1995 in terms of s 192.
CATCHWORDS:	CRIMINAL LAW - Procedure - application for leave to cross examine unfavourable witness - hearsay evidence including admissions - Lee's case - s 137 discretion to exclude - whether voir dire or cross examination in front of jury.
LEGISLATION CITED:	Evidence Act 1995
CATEGORY:	Procedural and other rulings
CASES CITED:	Lee v The Queen [1998] HCA 60; (1998) 195 CLR 594
PARTIES:	Regina AA AC SS Luke Tatchell David Wildsmith
FILE NUMBER(S):	SC 2009/3729; 2009/3746; 2009/3747; 2009/3748; 2009/4327
COUNSEL:	P Barrett (Crown) J Stratton SC (AA) R Pontello (AC) M Austin (SS) A Webb (Tatchell) G Brady (Wildsmith)
SOLICITORS:	L Burgoyne - DPP (Crown) K Kyriacou (AA) O'Brien Solicitors (AC) J Grix - LAC (SS) S Boyages - ALS (Tatchell) L Premutico (Wildsmith)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

DAVID KIRBY J

Monday 23 November 2009

2009/3729 R v AA
2009/3746 R v AC
2009/3747 R v SS
2009/3748 R v Luke TATCHELL
2009/4327 R v David WILDSMITH

JUDGMENT [No 1] – In the case of R v SS: re leave to cross examine a Crown witness

1 KIRBY J: The accused, SS, is on trial for the murder of James Tautari, who died on 27 December 2007. He was, at the time of Mr Tautari’s death, 17 years old. He is one of five accused. The trial is proceeding before a jury.

2 The prosecution has called a witness, Miad Shahidi, who went to school with SS. Mr Shahidi described SS as “my best mate”. On Boxing Day 2007, James Tautari was attacked and beaten by a group of young men. He died the next day. Mr Shahidi was interstate visiting grandparents when the attack occurred. He returned to Sydney on 28 December 2007. On the day of his return to Sydney, he saw a news bulletin about the murder of a man at St Clair.

3 The following day, Saturday 29 December 2007, Mr Shahidi communicated with SS on an internet chat line. According to his statement, he asked SS what was going on. SS replied: “I want to tell you face to face.” Arrangements were then made for him to come to Mr Shahidi’s house the following day. However SS did not attend.

4 On 30 December 2007, Mr Shahidi briefly spoke to SS on the telephone. Arrangements were made to meet the following day, New Year’s Eve, at SS’s father’s apartment in the city. When he arrived at the apartment, a party was in progress involving some fifty people. Mr Shahidi spoke to SS. He recounted their conversation in his police statement, in these terms:

“13. About ten minutes after we arrived we were in the lounge room there [were] only few people, we had a private conversation. I said ‘what happened’.
[SS] said ‘we didn’t mean to kill him, we just wanted to hurt him but it got out of hand, I just hit him in the legs, I was screaming to other guys ‘don’t hit him in the head’.’
I was little shocked at what he had told me and I didn’t speak for about ten minutes, because I knew the man had died the next day.
After a little while I said ‘don’t worry you tried to stop it, I know it was not your fault’.
[SS] said ‘it was out [of] control people were just hitting him in the head, he just would not go down I was hitting him in the legs. One guy was hitting him in the head and he would not go down.’”

5 The statement continued:

“14. Around midnight [SS] started crying and he said ‘I won’t be able to see my brothers grow up now’.
The following morning I left about nine or ten a.m. and I went home. [SS] was sleeping when I left. [SS] did not tell me who else was involved and I did not want to know so I didn’t ask.”

6 That statement was made by Mr Shahidi on 4 January 2008, that is, within a matter of days of the conversation taking place. Mr Shahidi subscribed his signature to each page of the statement, which began with these words:

“1. This statement made by me accurately sets out the evidence that I would be prepared, if necessary, to give in court as a witness. The statement is true to the best of my knowledge and belief and I make it knowing that, if it is tendered in evidence, I will be liable to prosecution if I have wilfully stated in it anything that I know to be false, or do not believe to be true.
2. I have not told any lies in this statement.”

7 Mr Shahidi was called as a witness by the Crown. He acknowledged communicating with SS before New Year’s Eve by means of the chat room. He was unsure of the terms of their conversation. He agreed that he went to the city to SS’s father’s apartment and saw SS. He agreed he spoke to him. When asked about the terms of their conversation, Mr Shahidi said this: (T 348)

“Q. Did [SS] say something to you about something that had happened?
A. I don't really remember the conversation we had that night. He just told me like they were involved in a, like I basically knew that someone from St Clair had been bashed and I only just knew that they were all involved , that sort of thing, but I didn't really get into it, but I then made a statement saying that - like - he told me a story but that was like 2 years ago and my parents pretty much forced me to make a statement because they seen coppers at the front of the door, they said like just go make a statement say whatever so I was just standing there, I wasn't thinking really straight, just pretty much made a little story up, just come out of the cop station.

Q. Are you saying that what you said in your statement was something you made up?
A. Pretty much.”
(emphasis added)

8 Mr Shahidi was then shown his statement, which he identified. He said this: (T 349)

“Q. Is that your statement?
A. Yes.

Q. That you made to the police on the fourth January 2008?
A. Yes.

Q. After you came back from Melbourne?
A. Yes.

Q. And a few days after you went to [SS’s] father's house?
A. Yes.

Q. And are you saying that what is contained in that statement you made it up?
A. Not all of it, just when I met [SS] and we talked about it like when I first, basically it is pretty much after I went to [SS's] house. I didn't make that up, just, wasn't really from [SS] just what other people told me, but still stories from other people.”

9 At that point the jury retired. Evidence was then taken on the Voir Dire. Mr Shahidi’s attention was drawn to his account of his conversation with SS. He said this: (T 356)

“Q. Just so that it's clear, you say that's not what [SS] said?
A. No, that's what other people told me but I said in the statement that's what [SS] said.”

10 When taken to each page of the statement, Mr Shahidi acknowledged it was accurate, apart from paragraph [13], which incorporated what others had told him, not SS (T 357-359). His evidence included the following: (T 359)

“Q. All right, and, is the whole of 13 or only part of it untrue?
A. Yeah it is just what other people told me, not [SS].”

11 The Crown, in these circumstances, sought leave to cross examine Mr Shahidi under s 38 of the Evidence Act 1995, as an unfavourable witness. Mr Austin of counsel, for SS, acknowledged that Mr Shahidi was unfavourable and that the trigger for s 38(1) had been satisfied (T 360). He submitted, however, that in circumstances where the witness had withdrawn the suggestion that SS had made admissions, his account in his statement of 4 January 2008 had “no weight”. He asked that it be excluded as a matter of discretion under s 137 of the Act. Attention was drawn to Lee v The Queen [1998] HCA 60; (1998) 195 CLR 594, and especially paragraphs [25] and [41]. Having resiled from his police statement, Mr Shahidi’s assertions in that statement, according to counsel, went only to his credit. He submitted that the following words of the High Court in Lee v The Queen had direct application:

“41. Evidence of Mr Calin’s prior statements of what the appellant had said should not have been admitted as evidence of the truth of the confession allegedly made by him to Mr Calin. Because those prior statements of what the appellant had said went only to Mr Calin’s credit, the trial judge could either have rejected those parts of the statements (s 137) or, if that course was not followed, would have had to give clear directions to the jury about the very limited use to which they could be put. In the circumstances of this case, the former course was to be preferred .”
(emphasis added)

12 However, there are, I believe, important differences between the facts in this case and Lee v The Queen. In Lee the prosecution witness, Calin, gave a police statement which he signed. It included a conversation with Lee where Lee was alleged to have said to him these words:

“6. ‘4 ... leave me alone, cause I’m running because I fired two shots.’ I said, ‘What do you mean you fired two shots.’ He said, ‘I did a job and the other guy was with me bailed out.’”

13 When he was called by the Crown during the trial, Calin said that, apart from pressing Lee to repay money owing to him, he could not recall any other conversation. His attention was drawn to the statement, which he denied making. The High Court noted the following:

“9. ... Trial counsel contended that although Mr Calin had signed the document he was affected by alcohol at the time, he had not read it or understood it and he signed it simply to be able to leave the police station. ...”

14 The Court added:

“11. The prosecution then cross-examined Mr Calin in front of the jury. Mr Calin admitted signing the document that had been prepared by the police but denied that the statements in it were his. The police officer who prepared the written statement gave evidence of the taking of the statement. Another officer deposed to Mr Calin having made a similar oral statement to him. The written statement that Mr Calin had signed was tendered in evidence.”

15 In the context of that case, the need for the prosecution to prove Calin’s statements added another layer in terms of the representations relied upon by the Crown. That created difficulties in respect of the hearsay rule and the requirement that admissions be first hand (s 82 Evidence Act). Here, however, there were no such difficulties. Mr Shahidi acknowledged that he made the police statement. He agreed that, on 4 January 2008, he told the police, amongst other things, that SS had said to him: “We didn’t mean to kill him, we just wanted to hurt him but it got out of hand, I just hit him in the legs.” The Crown asserted, in these circumstances, that the following statement by the Court in Lee, which was in parenthesis, had application:

“29. ... (Of course, it would be different if Mr Calin had said in evidence in court that the appellant had said he had done a job. Then the representation made out of court would be the appellant’s, not Mr Calin’s.)”

16 In the course of argument, counsel for SS ultimately did not oppose the Crown cross examining Mr Shahidi on the Voir Dire in the absence of the jury (T 364). He submitted that if, through cross examination, the witness capitulated and acknowledged that SS had made the admissions attributed to him in his police statement, the evidence could then be given in front of the jury. If he did not then, according to counsel for SS, the problem raised by Lee v The Queen would remain. In accordance with the High Court’s judgment, the statements he made to the police, inconsistent with his testimony, would go only to Mr Shahidi’s credit. For the reasons given in Lee v The Queen, the statements should be excluded as unfairly prejudicial (s 137).

17 Having heard argument, I made a number of rulings: (T 370)

First, that the Crown should have leave to cross examine Mr Shahidi on terms which were defined.
Secondly, that the cross examination should take place in the presence of the jury.

18 So far as the first aspect is concerned, there was, as mentioned, no contest. The issues under s 38(1) and s 192(2) of the Evidence Act were canvassed (T 360-362). In respect of the second matter, the ultimate issue for the jury will be whether they accept SS told Mr Shahidi:

“We didn’t mean to kill him, we just wanted to hurt him but it got out of hand, I just hit him in the legs, I was screaming to the other guys, ‘Don’t hit him in the head’” (supra para [4])

as he acknowledged to the police on 4 January 2008 or whether (as he suggested in his evidence before the Voir Dire), that his account “wasn’t really from [SS], just what other people told me, but still stories from other people” (T 349) (supra para [8]). It was my view that the jury, in making its determination, was likely to be greatly assisted by seeing Mr Shahidi cross examined. The jury will ultimately be told that, before they can rely upon the evidence of Mr Shahidi as part of the material against SS, they must be satisfied beyond reasonable doubt that SS did say the words attributed to him by Mr Shahidi in his police statement made shortly after their conversation. They will also be told that, if there is any reasonable possibility that the account which Mr Shahidi acknowledged he gave to the police at that time was based, not on what SS said to him, but what others had attributed to SS, they must disregard the evidence. In that circumstance it should be given no weight.

19 I should add that, given the difference between the facts in this case and Lee’s case, I do not accept that the only circumstance in which the Crown could ask that the evidence be placed before the jury is if Mr Shahidi were to capitulate in cross examination and acknowledge that SS said the words set out above, or words to that effect. In my view, it is an issue for the jury as to which version of Mr Shahidi’s account they accept, and whether they are satisfied that there is no reasonable possibility that the words of SS, which he included in his account to the police, were based upon conversations with other people.

20 I should deal specifically with s 137. It will be noticed (T 348, supra para [7]) that Mr Shahidi, in his evidence, acknowledged that he had a conversation with SS on New Year’s Eve and that SS “told me like they were involved”. The words of SS, repeated to the police (as recorded in his statement), are simply an elaboration upon that involvement. Indeed, they are an elaboration which is exculpatory (“We didn’t mean to kill him, we just wanted to hurt him but it got out of hand, I just hit him in the legs, I was screaming to other guys ‘don’t hit him in the head’.”) (supra para [4]). The evidence, I believe, has significant probative value. In the context of the direction which I propose, the probative value is not significantly outweighed by the danger of unfair prejudice to the accused.

21 As it happens, when Mr Shahidi resumed his evidence in front of the jury and was cross examined by the Crown, he appeared to alter his stance. Whilst he answered many questions by simply saying that he had no memory of the conversation, he did not again assert that what he had said to the police was the product of conversations with others, not SS, although he did say in cross examination it could have been (T 407, 410). However, he gave the following evidence: (T 406)

“Q. Would you agree that your memory would have been better back in the 4th of January 2008 than it is now?
A. Yes.

Q. And you would agree, wouldn't you, that you didn't tell any lies to the police when you made your statement, did you?
A. No.

Q. You told the truth, didn't you?
A. Yes.

Q. What is recorded in your statement is in fact what happened, isn't it?
A. Yes.”

22 On the test postulated by counsel for SS, that acknowledgement by Mr Shahidi would, in any event, have justified the reception of the evidence, had it been taken on the Voir Dire.

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