R v Andrews (No 3) - [2005] SASC 298

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Voir Dire)
R v ANDREWS & ORS (No 3)
Reasons for Rulings of The Honourable Justice Debelle
5 August 2005
CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS - COMPETENCE AND COMPELLABILITY - SPOUSE OF ACCUSED PERSON
Spouse of accused charged with murder – s 21 Evidence Act 1929 (SA) – whether de facto spouse of accused should be exempted from giving evidence – relationship with accused likely to be harmed – witness might suffer psychological harm – relevant principles – exemption not granted.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - WITNESSES - HOSTILE WITNESSES
Hostile witness – whether witness should be declared hostile – witness evasive and claimed to have lost memory of key events – witness did not deny truth of prior statement to police – witness deliberately avoided answering questions – witness declared to be hostile.
Evidence Act 1929 (SA) s 21, referred to.
R v Hutchison (1990) 53 SASR 587, applied.
Blewitt v The Queen (1988) 80 ALR 352, distinguished.
R v Romano (unreported, Supreme Court of South Australia, 5 September 1984, Cox J); Trzesinski v Daire (1986) 44 SASR 43, not followed.
R v Morgan (unreported, Supreme Court of South Australia, 22 October 1984, Cox J), discussed.

R v ANDREWS & ORS (No 3)
[2005] SASC 298
Criminal

DEBELLE J: These are the reasons for two rulings in relation to the witness Rachel Pine (“the applicant”). The first ruling was to dismiss her application to be exempted from giving evidence pursuant to s 21 (2) of the Evidence Act 1929. The second was to declare her a hostile witness.
Section 21 (1) of the Evidence Act 1929 (“the Act”) has abolished the common law rule that a wife is incompetent to give evidence against her husband. However, s 21 (2) provides for the circumstances in which a wife or other close relative of an accused person may apply to be exempted from the obligation to give evidence against the accused.
It is convenient to set out the terms of s 21.
21(1)     A close relative of a person charged with an offence shall be competent and compellable to give evidence for the defence and shall, subject to this section, be competent and compellable to give evidence for the prosecution.
(2)Where a person is charged with an offence and a close relative of the accused is a prospective witness against the accused in any proceedings related to the charge (including proceedings for the grant, variation or revocation of bail, or an appeal at which fresh evidence is to be taken) the prospective witness may apply to the court for an exemption from the obligation to give evidence against the accused in those proceedings.
(3)Where it appears to a court to which an application is made under subsection (2) ‑
(a)that, if the prospective witness were to give evidence, or evidence of a particular kind, against the accused, there would be a substantial risk of -
(i)serious harm to the relationship between the prospective witness and the accused; or
(ii)serious harm of a material, emotional or psychological nature to the prospective witness; and
(b)that, having regard to the nature and gravity of the alleged offence and the importance to the proceedings of the evidence that the prospective witness is in a position to give, there is insufficient justification for exposing the prospective witness to that risk,
the court may exempt the prospective witness, wholly or in part, from the obligation to give evidence against the accused in the proceedings before the court.
(3a)If the prospective witness is a young child, or is mentally impaired, the court should consider whether to grant an exemption under subsection (3) even though no application for exemption has been made and, if of opinion that such an exemption should be granted, may proceed to grant the exemption accordingly.
(4)     Where a court is constituted of a judge and jury -
(a)an application for an exemption under this section shall be heard and determined by the judge in the absence of the jury; and
(b)the fact that a prospective witness has applied for, or been granted or refused, an exemption under this section shall not be made the subject of any question put to a witness in the presence of the jury or of any comment to the jury by counsel or the presiding judge.
(5)The judge presiding at proceedings in which a close relative of an accused person is called as a witness against the accused must satisfy himself or herself that the prospective witness -
(a) is aware of his or her right to apply for an exemption under this section; or
(b)is incapable, by reason of age or mental impairment, of understanding his or her right to apply for an exemption under this section.
(6)This section does not operate to make a person who has himself been charged with an offence compellable to give evidence in proceedings related to that charge.
(7)     In this section -
"close relative" of an accused person means a spouse, parent or child;
"spouse" includes a putative spouse within the meaning of the Family Relationships Act 1975.
The applicant had been subpoenaed to give evidence. She and the accused Evin Andrews have been living in a de facto relationship for a number of years. There is a daughter of that relationship who is now aged six years. The applicant applied pursuant to s 21 (2) to be exempted from giving evidence against Andrews in this trial. She is the putative spouse of Evin Andrews as that expression is defined in the Family Relationships Act 1975. She is, therefore, a close relative of Evin Andrews within the meaning of s 21 (7) of the Act. She, therefore, has the capacity to make the application.
I was satisfied that the applicant was aware of her right to make the application. However, it was quite apparent that the applicant required assistance in presenting her application. At my request Mr Longson, who was present in court, kindly agreed to assist her with her initial application. Later he acted for her and argued the application on her behalf. His assistance was invaluable.
Procedural Issues
Before proceeding to the merits of the application, it is convenient to make some brief observations on the procedure to be adopted in respect of an application made pursuant to s 21 (2) of the Act. In R v Morgan (unreported, Supreme Court of SA, 22 October 1984) Cox J expressed the following views as to the procedure to be adopted
In my opinion, when it appears that a prospective witness is a close relative within the meaning of s 21 of the Evidence Act, the prospective witness ought to be brought into court and his right to apply for an exemption under s 21 explained to him by the judge. The witness should then be asked whether any such application is to be made and, if it is, the judge may, and very likely will, ask him questions with a view to discharging his responsibility under subs (3) and making an appropriate decision.
There are two things I would say, particularly, about the procedure as I understand it under this new section. First, I see no reason why the examination of the prospective witness should be made on oath. Secondly, and more importantly, I do not think, on reflection, that it is appropriate to submit the prospective witness to questioning by counsel for the Crown or counsel for the defence. I say that because I do not consider that they have a legitimate interest in the issue that arises under s 21. I do not mean by that, of course, that they may not be very interested, in the ordinary sense of the word, in the result of any exemption application under s 21. Indeed, one could imagine a case in which the success or failure of the prosecution might depend entirely upon whether or not an application for exemption is granted. However, that does not give the parties an interest in the technical sense which is relevant to what I am now saying.
I think the position is in this respect analogous to a privilege claim by a witness who does not want to answer a question on the ground that his answer might incriminate him. The situation also has some similarity to the discharge by the judge of his responsibilities with respect to a child witness under s 9 and s 12 of the Evidence Act.
I conclude then, contrary to the unconsidered view that I took in Romano, that the procedure to be followed under s 21 of the Evidence Act is one for the judge alone. When he has heard what the witness has to say, he will consider the issues that are thrown up, particularly by subs (3) of s 21, and grant or refuse the prospective witness’s application as he thinks proper.
Mention has also been made this morning of the question whether the right of a person who falls within the scope of the section should be explained to him by the judge personally. Mr Brebner, for the Crown, told me on Friday that the position had been explained to this particular prospective witness, but he drew my attention this morning to the procedure followed by two other members of the court on this matter in earlier trials. In one case the judge accepted the assurance of counsel and did not, apparently, undertake any independent inquiry of the prospective witness for himself. In that second case, a different trial judge took the view that he should himself, at least in that case, explain to the witness his rights under s 21. My own experience in Romano leads me to think that the better course is for the judge to undertake this responsibility …. I had little doubt in that case, from my knowledge of counsel concerned, that an explanation of the witness’s rights had in each case been given to him, but, of course, that does not necessarily mean that the witness understood properly what his rights under the section were. In any event, it is plainly better to avoid raising an issue, at the trial or later, on that particular question. I am of the opinion, therefore, that, at least as a general rule, it is better if the trial judge makes the necessary explanation and inquiries under subs (5) of s 21 for himself, and satisfies himself from the prospective witness’s own answers that the witness understands the questions that necessarily arise under s 21 where a close relative is called to give evidence against a person charged with an offence.
In Morgan, Cox J made an unqualified recantation of views he had earlier expressed in R v Romano (Supreme Court of SA, 5 September 1984). In Trzesinski v Daire (1986) 44 SASR 43, Prior J adopted the remarks of Cox J in Morgan and held that it was inappropriate for a spouse who had made an application under s 21 (2) to be separately represented. In Romano, Cox J had expressed “a very real doubt as to whether…one should provoke such questions as legal representation in the calling of supporting witnesses”.
Broadly speaking, I respectfully share the views of Cox J. However, I do not agree with his view nor with the view of Prior J that it is not appropriate to permit the applicant to be separately represented or to call evidence. Such a rule is altogether too absolute.
Given that s 21 (3) (a) (ii) permits the Court to exempt a witness where there is a substantial risk of psychological harm to that witness, there will be occasions when the witness making the application under s 21 (2) will be suffering from the mental illness or other condition which is the basis of the application. Such an applicant should be permitted to have a legal representative to lead whatever evidence is required and to argue the application. There may be other instances which give rise to the desirability of legal representation. Furthermore, the terms under which s 21 (3) is expressed may be difficult for an applicant to comprehend. As Prior J noted in Trzesinski v Daire at 50, s 21 (3) “is not the easiest of provisions to apply”. In appropriate cases, an applicant should be permitted to have the assistance of a legal representative to ensure that all relevant evidence is before the Court and all relevant submissions are made.
As a general rule, an application under s 21 (2) will be determined by the judge alone without hearing counsel, having heard what the applicant has presented in support of the application. However, that should not be an inflexible rule. Exceptions should be permitted in appropriate cases. It will be for the judge to decide according to the facts and circumstances of the case before him whether it is necessary or desirable for the applicant to have the benefit of legal representation or whether it is necessary for evidence to be led in support of the application.
For these reasons I did not follow the procedure adopted by Cox J in Morgan. I permitted Mr Longson to lead evidence and to make submissions on behalf of the applicant.
I add one further comment as to the procedure. For the reasons expressed by Cox J in Morgan, it is not appropriate as a general rule to require the applicant to submit to questioning by counsel for the Crown or counsel for the defence. Each has a legitimate interest to advance and that might not always be consistent with the interests of the applicant. However, notwithstanding that the enquiry into an application under s 21 (2) must be made by the judge, there is no reason why the judge should not, in an appropriate case, permit counsel for the Crown and counsel for the defence to examine the applicant or any witness called by the applicant. Each may be in a position to bring to light facts relevant to the application which are not known to the judge. In my view, in an appropriate case, counsel for the Crown and counsel for the defence may also make submissions on the application. However, it is appropriate to stress that in the ordinary case, the enquiry by the judge will be of a summary nature for the reasons expressed by Cox J.
The Issues
I turn to examine the present application. The application is grounded on both limbs of s 21 (3) (a). The applicant asserts that, if she were to give evidence, there would be a substantial risk of serious harm to her relationship with Evin Andrews and, as well, a substantial risk of serious harm of a psychological nature to her. The applicant gave evidence in support of the application. Evidence in support of the application was also given by Dr Czechowicz. At the request of Mr Longson, I had ordered a report to be provided as to the psychiatric condition of the applicant. Dr Czechowicz had examined the applicant and had reported by letter dated 29 July 2004. In addition to examining that report, I had also examined the medical reports concerning the applicant in exhibit VD006.
The applicant’s evidence was that she did not want to give evidence because that might cause Evin Andrews to be imprisoned. She said that her daughter had a good relationship with Evin Andrews. Although there had been difficulties in her relationship with Evin Andrews, the applicant believed she would ultimately like all three of them to be living together as one family. She believed that giving evidence would harm the relationship which existed between herself and Evin Andrews. There is other evidence pointing to the conclusion that the relationship between the applicant and Evin Andrews has been subject to periods of great difficulty and periods of separation. Some of that separation has been a consequence of the terms of the bail agreement of Evin Andrews.
The capacity of Dr Czechowicz to make an assessment of the mental condition of the applicant was hampered by the fact that it was based on one examination of a person he had not seen before. It was made the more difficult because the applicant was quite hostile and uncooperative, despite the fact that the examination had been arranged for her benefit. However, Dr Czechowicz also had access to the case notes from hospitals at which the applicant had received treatment for psychiatric illness or other conditions, as well as case notes from the Statewide Mental Health Scheme. It was the opinion of Dr Czechowicz that the applicant was suffering from an adjustment disorder with depression. She had a relatively long history of depression for some years before the incident on 2 March 2002 which gives rise to this trial, and the condition has persisted since. She had attempted suicide at the age of 16 years. For some years she has been prescribed anti-depressant medication. Her psychiatric problems tend to fluctuate in response to events. Dr Czechowicz described her as a fragile individual whose depressive condition would increase when subjected to stress, on occasions with the risk of self-harm. She did not have a psychiatrist who was regularly treating her but had attended at public hospitals on occasions of depression, which were usually accompanied by thoughts of self-harm and suicide. There had been occasions when the applicant had harmed herself but in a superficial way. Dr Czechowicz said that she responded to stress in a superficial way.
In the view of Dr Czechowicz, the applicant’s medical condition was likely to become worse if she was compelled to give evidence. There was a risk of mental breakdown and further harm to her mental state if she had to give evidence. The applicant had also reported to Dr Czechowicz that she feared her relationship with Evin Andrews might suffer if she gave evidence. She also reported fears of adverse publicity associated with her giving evidence.
Section 21 (3) requires the Court first to be satisfied that there is a substantial risk of serious harm of the kind identified in sub-paras (i) and (ii) of sub-s (3) (a) and then to weigh that substantial risk both with the nature of the gravity of the alleged offence and with the importance to the proceedings of the evidence that the prospective witness is in a position to give. Having done so, the Court must then determine if there is a sufficient justification for exposing the witness to that risk.
It must be noticed that sub-s (3) (a) requires that there is a substantial risk of serious harm of a kind specified in sub-paras (i) and (ii). Both the nouns “risk” and “harm” are qualified by quantitative epithets which signify that a good deal more than an ordinary risk of ordinary harm is required. The applicant must first establish that there is a substantial risk of serious harm of a kind specified in sub-paras (i) and (ii). If the applicant does not, the Court need proceed no further. If the applicant does establish that there is a substantial risk of serious harm of one or more of the specified kinds, the Court must then proceed to consider whether there is insufficient justification for exposing the witness to that risk, having regard to the matters specified in sub-s (3) (b). In other words, even if there is a substantial risk of serious harm of a specified kind, it is open to the Court to conclude that the witness should give evidence notwithstanding that risk.
I deal first with the question whether there is a substantial risk of serious harm to the relationship between the applicant and Evin Andrews. The relationship does not appear to be a particularly happy one. There have been periods of separation. Admittedly, since the incident on 2 March 2002, the separation has in part been caused by the terms of the bail agreement of Evin Andrews. Notwithstanding that fact, it appears the applicant perceives that there is some hope for the relationship and she has the desire that she and the daughter will ultimately live together with Evin Andrews.

These factors have a manifest effect upon the applicant’s mental condition. Her reluctance to give evidence against Evin Andrews will add to the stressors of her day-to-day existence and, as Dr Czechowicz believes, may adversely affect her mental condition. However, Dr Czechowicz’s opinion that there is a risk that the applicant will suffer mental breakdown if required to give evidence must be weighed against the fact that, notwithstanding the applicant has on a number of occasions expressed suicidal thoughts, she has not in recent years done any more than inflict superficial wounds. There is evidence that her concern to care for her daughter is likely to prevent any desire for self-harm. The fact that she has little or no support from other members of her family in bringing up her daughter is likely to reinforce that fact. While there will undoubtedly be a risk of a degree of psychological harm to the applicant if she has to give evidence, I am not satisfied that there is a substantial risk of serious psychological harm.
The fact that a spouse or a de facto spouse of an accused person gives evidence against that person will be likely to cause a degree of harm to a relationship between them. It would indeed be a remarkable relationship if it did not. Where, as here, the relationship has already experienced difficulty, the risk of harm to the relationship is even greater. If the applicant gives evidence, there is a real risk that Evin Andrews might be convicted and, if he is, he will in all likelihood be imprisoned for a long time. In that event, there might well be a perception that Evin Andrews’ imprisonment was caused at least in part by the fact that the applicant gave evidence, and so cause a breakdown of their relationship. The extent of the harm to the relationship and the risk of that harm might in many instances depend on whether the accused is convicted. There are, therefore, difficulties in determining whether there is a substantial risk of serious harm to that relationship.
Mr Snopek submitted that as Evin Andrews had made a statement to the police in which he had admitted much of what the applicant would prove, the fact that the applicant gave evidence would not be likely to lead to a substantial risk of serious harm to the relationship. However, in my view, regard must be had to the perception held by others as to the consequences of giving evidence, not by a precise legal analysis of the consequences of the applicant giving evidence but the perception of it. In this case there is a further factor which will affect that perception. Evin Andrews is one of eight accused. One of the other accused is his brother and some, if not all of the other accused, are friends or acquaintances of Evin Andrews. Much of the evidence to be given by the applicant is admissible against all accused. There is a risk that some of those accused, if convicted, will perceive that they were convicted in consequence of her evidence. That may lead to recriminations or at least complaints against Evin Andrews or the applicant and thereby lead to the risk of further harm to the relationship.
For all of these reasons, there is a risk of harm to the relationship. It is difficult to determine whether it is a substantial risk of serious harm to that relationship. I will proceed on the footing that it is.
I turn to consider the issues in sub-s (3) (b). Evin Andrews is one of eight persons charged with murder. This is clearly a serious crime, the most serious save for the crime of treason. The prosecution case is that the eight accused were engaged in a joint enterprise to commit murder or, alternatively, that some of the accused were engaged in such a joint enterprise and others aided and abetted the crime. The applicant is in a position to give evidence which is quite critical to the prosecution case. The prosecution case is that the accused Jason Ugolini and others came to the house of Christopher Fuller on the evening of 2 March 2002. Also present at that house were Evin Andrews and Matthew Andrews. After about one hour all eight left in two cars and went to the park where Darren Male was severely beaten. He later died from his injuries. They all returned together to Christopher Fuller’s house. The applicant saw Jason Ugolini’s car arrive and the occupants go into Christopher Fuller’s house. She knew that Evin Andrews was in that house with Matthew Andrews and Christopher Fuller. She saw the two cars depart with some of the accused carrying weapons. She later saw the cars return and heard statements made by some accused which are capable of being found to be admissions of participation in the killing of Darren Male. She is the only witness who is in a position to give admissible evidence against all eight accused as to the events preceding the incident in which Darren Male was killed. Her evidence constitutes a significant link in proof of the alleged joint enterprise. It also constitutes a very important part of the prosecution case against most of the accused.
Her evidence constitutes such an important part of the prosecution case that, even if there were substantial risk of serious harm to the relationship between the applicant and Evin Andrews, the applicant should not be exempted from the obligation to give evidence. I would have reached the same conclusion even if I had found there was a substantial risk of serious harm of a psychological nature to the applicant. There is a natural reluctance to make an order of this kind but, in all the circumstances, I believe there is no alternative but to do so.
For these reasons the application to be exempted from the obligation to give evidence is dismissed.
The Hostile Witness Ruling
After he had been examining the prosecution witness Rachel Pine (who I will now call Ms Pine) for some time, Mr Snopek, counsel for the prosecution, applied for a voir dire hearing so that he may be able to examine her as to a previous statement made by her to police and obtain a ruling that she was a hostile witness. The application was not grounded on the fact that the witness had given false evidence. Instead, Mr Snopek contended that she had deliberately withheld material evidence and had demonstrated an unwillingness to tell the whole truth in relation to the issues in this trial. I ruled that a basis had been laid for a voir dire hearing to determine whether Ms Pine was a hostile witness. I did so because I had the clear impression that Ms Pine was not willing to tell all she knew in relation to the events of the night of 2 March 2002. She had frequently said that she did not remember facts which were facts not likely to be forgotten.
In the course of her evidence on the voir dire, Ms Pine admitted making a statement to the police on 15 March 2002 and signing that statement as being correct to the best of her knowledge and belief. She was taken through the statement by Mr Snopek. She did not dispute anything in the statement. She agreed that she had told the police what was contained in the statement. In respect of every material fact included in the statement, she agreed that what she said to the police was true. Mr Snopek took the witness to particular answers to questions he had asked in the presence of the jury and asked why she had not given an answer which accorded with what was contained in her statement. The witness could not give any satisfactory reason. Mr Snopek asked if her reason was that she was trying to protect Evin Andrews. She said that it was not. I do not accept that answer. In my view, that was at least one of her reasons for not answering. I believe that another reason was that she did not wish to give evidence which might incriminate the co-accused who were Evin Andrews’ friends and acquaintances.
In cross-examination Ms Pine had said that her memory was affected by anti-depressants she was taking. She gave that as her explanation for her inability to recall events on which she had been questioned before the jury. I do not accept that explanation for her conduct in the witness box. My reasons appear later.
A number of counsel for the defence submitted that the reason for the witness not being able to answer particular questions was that she was affected by the anti-depressant medication she was taking. As I have said, I do not accept that explanation for her inability to recall events or that she was affected by the medication she was taking. While that might explain an inability to recall matters of detail, it does not explain an inability to recall matters which are associated with an event of major significance, such as the killing of a person.
Of particular note was the inability of the witness to recall the topic on which Evin Andrews had spoken to her on returning from the incident in the park. According to her statement to the police, they had a conversation lasting 10 to 15 minutes in which he had told her there had been a fight near the Red Lion Hotel. He said that he had seen Jason Ugolini hit a man with a baseball bat and that the man was lying on the ground not moving. He said he had seen a lot of blood on the ground. That is not the kind of topic which one would be likely to forget.
On another occasion, when asked to identify who had returned from the park in Jason Ugolini’s car, she said that she could not remember. However, a short time before she had given evidence that Jason Ugolini and his brothers Robert and Adam were in the car. Her unwillingness to recount what she had seen and heard was expressed in this passage at TX 405 – 406.
Q.    Did you see any vehicles arrive that evening.
A.    Across the road, yes.
Q.    At whose house.
A.    Chris’s.
Q.    Whose vehicle turned up at Chris’s house.
A.    It was Jason and – I don’t, I don’t remember.
Q.    Can you say what type of colour car it was.
A.    I don’t know.
Q.    How did you know it was Jason.
A.That’s what I’m saying, I don’t want to get someone wrong but – I don’t know if it was him or not.
Q.How many people did you see in the car.
A.About two people, three people. I don’t know.
Q.Who were they.
A.Told you, I don’t know. I don’t remember.
Understood in their context, those words were an expression of her desire not to get anyone into trouble. Having uttered the name “Jason”, Ms Pine disingenuously seeks to distance herself from the answer and resorts to lack of memory. She plainly seeks to avoid naming individuals she had been able to name in the police interview. This is but one of several instances where Ms Pine let something slip only to try subsequently to attempt to retrieve the situation by saying she could not remember. The last instance I will mention is at TX 406 ‑ 407 where the following exchange occurred
Q.    Did Evin Andrews remain home.
A.    Afterwards, yes.
Q.    After what.
A.    Before, before it all happened.
Q.    What are you referring to “all happened”.
A.    I don’t know.
Her answer that she did not know to what she was referring when she used the expression “it all happened” is a manifestly naïve attempt to refuse to relate what she knew.
The test for determining whether a witness is hostile is not limited to whether the witness is giving false evidence. The test is whether the witness is deliberately withholding material evidence by reason of an unwillingness to tell the whole truth at the instance of the party calling that witness or for the advancement of justice: R v Hutchinson (1990) 53 SASR 587 per King CJ at 592 with whom the other members of the court agreed. The motive of the witness in withholding evidence or giving false evidence is irrelevant.
Ms Pine gave evidence that what is contained in her statement to the police was true. I accept that evidence. Her statement was given within two weeks of the events occurring when the facts would have been quite fresh in her memory. It has not been demonstrated that her recollection of those facts is inaccurate.
In her statement to the police, the witness recounted events before and after the incident in the park on 2 March 2002 in considerable detail. Given the nature of those events, it is not surprising that she was able to recall the events in detail when giving her statement to the police.
The contrast was remarkable between what she recounted to the police and the detail of that account and what she was prepared to state in the witness box. The sheer totality of what was contained in her statement demonstrated most forcibly that she was in a position to give evidence concerning a number of events before and after the incident in the park. This was not an instance of a witness not coming up to proof but, instead, a witness who was doing her utmost not to give evidence about relevant events. It was apparent that she did not wish to give evidence about those events and would resort to ingenuous stratagems in an attempt to prevent doing so. The stratagem most frequently used was to assert an inability to remember facts. For the reasons already given, while I accept that she might have forgotten details of particular events, I do not believe she would have forgotten the main events of this night.
I have already mentioned some instances of her manifest unwillingness to tell the whole truth. I will not list them all. Some others are
·Her unwillingness to give evidence of her de facto husband’s movements that night and in particular to state that he had gone to the accused Fuller’s house for a time before the incident in the park.
·Her unwillingness to recount how she had seen two cars leave Fuller’s house. She said she could not remember seeing the cars leave. In contrast, she had given police a detailed description of the occupants of the two cars and the weapons that were being carried by some of those occupants. She would not be likely to forget that two cars left and that all the accused were in them.
·She remembered going to the gates of her house but could not remember why. She offered the childish explanation that they were her gates, implying that she could do as she wished with them. In her statement to the police she had said that she opened the gates at the request of Robert Ugolini. Although she may have forgotten precisely who it was who had asked her to open the gates in all likelihood she would be able to remember that it was one of the accused men.
·She said in evidence that Evin Andrews had told her they were going to visit a man named Troy. That is to be contrasted with her statement that Evin Andrews had told her they were going to a fight. The later is more likely to be remembered.
·She said that she could not remember what Evin Andrews had said to her after the two cars had returned from the park. This is to be contrasted with her statement to the police when she recounted that he had told her that a person had been struck with a baseball bat. While recollection of details might be difficult, it is not at all likely that a person could forget the substance of such an unusual conversation.
These are some of the more obvious instances of her unwillingness to recount what she had seen. In addition, it was quite apparent from her overall demeanour and conduct in the witness box that she did not wish to give evidence at all. This was in every respect a clear instance of a witness deliberately withholding material evidence and demonstrating a manifest unwillingness to tell the whole truth.
For these reasons I declared that she was a hostile witness.
In reaching this conclusion I have had regard to the possibility that the witness might have been disconcerted by having to give evidence by means of closed circuit television. However, I think that most unlikely. She had already given evidence on an earlier voir dire hearing without any apparent concern. She did not then express any difficulty in the procedure. I do not think it at all likely that the use of closed circuit television caused her any difficulty.
Counsel for some of the accused referred to Blewitt v The Queen (1988) 80 ALR 352 at 355 and submitted that the Crown knew that Ms Pine would be a hostile witness and had constructed this situation. I unhesitatingly reject this contention. While the Crown knew that Ms Pine did not wish to give evidence, there is nothing to indicate that she would resile from her statements in such a comprehensible manner. The decision in Blewitt is to be distinguished also because, unlike the witness in that case, Ms Pine accepted the whole of her statement to the police.