R v Anyang (Ruling)
[2011] VSC 31
•9 February 2011
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1611 of 2009
| THE QUEEN |
| V |
| ATEM ANYANG |
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JUDGE: | WHELAN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4, 7, 8, 9 February 2011 | |
DATE OF RULING: | 9 February 2011 | |
DATE OF REASONS: | 14 February 2011 | |
CASE MAY BE CITED AS: | R v Anyang (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 31 | First Revision: 18 February 2011 |
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CRIMINAL LAW – Evidence – Ruling in advance – Unfavourable witness.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms Williams SC | Office of Public Prosecutions |
| For the Accused | Mr Dann | C. Marshall & Associates |
HIS HONOUR:
Abul Akol is married according to the traditions of the Dinka people to the accused, Mr Anyang. Mr Anyang is charged with offences arising out of an incident which occurred at about 1.30 pm on 26 February 2009 on Brunswick Road, Brunswick. Mr Anyang is alleged to have assaulted and attempted to murder a friend of Ms Akol’s named Joseph Wach and to have also assaulted Ms Akol herself. It is alleged that the attack on Mr Wach was with a knife and resulted in serious injury.
Ms Akol spoke to a police officer, Detective Senior Constable Mark Perna, at the scene of the incident shortly after it occurred, and spoke to him again later the same day at the Royal Melbourne Hospital. She signed a document at the hospital which was written by Mr Perna and which purports to be a statement by her. She made a further statement on 3 May 2010 which was said to correct and clarify aspects of her previous statement made 26 February 2009.
Prior to the hearing commencing the prosecution gave written notice under s 38(6)(a) of the Evidence Act 2008 (“the Act”) of an intention to seek leave to cross-examine Ms Akol under s 38(1) of the Act.
When the matter first came before me, Ms Akol objected to being required to give evidence. I ruled that she was entitled to object under s 18(2) of the Act for reasons which I gave in that ruling. I then ruled that she should nevertheless be required to give evidence for reasons which I again set out in that ruling.
Ms Akol had not given evidence at the committal. In the response to the summary of prosecution opening filed on behalf of the defendant, Mr Anyang indicated that a “Basha” inquiry was sought in relation to Ms Akol.
Having ruled that Ms Akol was required to give evidence, I proceeded to conduct a voir dire of the kind described in the High Court decision Adam v The Queen.[1] This hearing was for the duel purpose of addressing the prosecution’s foreshadowed intention to seek leave to cross-examine Ms Akol and addressing the defence desire for a Basha inquiry. In the course of that hearing I gave counsel for the prosecution leave to cross-examine Ms Akol on prior inconsistent statements.
[1](2001) 207 CLR 96 (“Adam”).
Ms Akol gave an account of the events on 26 February 2009 on oath on the voir dire. There is a dispute about whether she has made certain prior inconsistent statements and I will turn to that dispute in a moment. An important matter to be noted is that on any of the versions she has given, or purportedly given, she was an eye witness to at least some of the events on Brunswick Road that day.
The first issue to be addressed is whether the prosecution should be granted leave to cross-examine. A ruling on that issue is sought pursuant to s 192A of the Act and in accordance with the procedure described in Adam. Whilst it is obviously convenient and desirable to inquire into the matter, hear submissions, and address the issue in advance, any ruling made is necessarily premised on the position being the same when the witness is called to give evidence before the jury as it was on the voir dire. As the High Court observed in Adam, the ruling is made on the assumption that the witness adheres to the position adopted on the voir dire.
Senior counsel for the prosecution specified the matter upon which she sought to cross-examine the witness as being the events of 26 February 2009 and previous statements of the witness in relation to those events. She submitted that she should have leave to cross-examine under each of paragraphs (a), (b) and (c) of s 38(1) of the Act.
The account of events given by Ms Akol on the voir dire was one which was favourable to Mr Anyang. Mr Anyang does not deny being involved in a fight with Joseph Wach on Brunswick Road. He does deny that he was the one who attacked Mr Wach. He denies that he brought a knife to the fight or that he deliberately stabbed Mr Anyang. He says he was acting in self-defence. The account which Ms Akol gave of the events on the voir dire was favourable to the accused in relation to the incident with Mr Wach because she professed not to have seen any of the circumstances which might call Mr Anyang’s version of events into question. She said that she did not see Mr Anyang first approach Mr Wach but rather first saw them when they were already fighting. She said that she never saw a knife. She said she never heard Mr Anyang say anything threatening. She said that she did not see Mr Anyang stabbing Mr Wach during the fight.
The account of events which she gave on the voir dire was very different from the account set out in the document which she signed on 26 February 2009. There are too many differences to catalogue them. Suffice it to say for present purposes, that the document which she signed on 26 February 2009 describes a violent attack with a knife involving repeated stabbing by Mr Anyang upon Mr Wach without provocation.
In the document which she signed on 26 February 2009 she also described an attack by Mr Anyang upon herself. In the account of events she gave on the voir dire she said that she was not attacked at any time by Mr Anyang and that she suffered injuries as a result of falling when trying to enter a car.
The account of events she gave on the voir dire was more consistent with a second statement that she made on 3 May 2010 which was said to correct and clarify aspects of her previous statement made 26 February 2009. There were, however, also inconsistencies between that statement and the account which she gave on the voir dire. In that statement she said that she had seen Mr Anyang get out of his car and walk towards Joseph Wach. That was not the account of events she gave on the voir dire. In her statement of May 2010 she said that she had heard Mr Anyang saying “I caught you out”. On the voir dire she said that she could hear both men saying things but that she did not know what was being said.
On the voir dire Ms Akol was cross-examined about what was put to her as her prior statements. She gave an account of the circumstances in which the document dated 26 February 2009 was signed. At the completion of her evidence Mr Perna gave evidence about what she had told him at the scene which he had noted in his diary (Exhibit 8), the circumstances in which he had taken the statement at the hospital, and the circumstances in which she had signed that statement. His account of events was very different to Ms Akol’s.
I do not accept Ms Akol’s account of how the document dated 26 February 2009 came to be signed. My conclusion is that Ms Akol has made prior statements which are inconsistent with the version of events she gave on the voir dire in significant respects. The evidence given by Ms Akol on the voir dire was unfavourable to the prosecution both in relation to the incident involving Mr Wach and the alleged incident involving herself. My conclusion is she did not make a genuine attempt to give evidence about matters of which it could reasonably be supposed that she had knowledge.
It is unnecessary to catalogue the aspects of her evidence which have led me to the conclusions I have set out because, in the end, the defence submission was that all of the accounts of events which Ms Akol has given so lack credibility that the prosecutor should not call her as a witness at all and that, if called, I should exclude her prior statements because she is so unreliable under s 137.[2]
[2]In the reasons published before this revision I referred to s 137 as a “discretion” (as did counsel in the course of submissions). That term is a convenient but inaccurate description of the weighing up process provided for by s 137, which reflects what was the Christie discretion. If the danger of unfair prejudice outweighs the probative value there is of course then no discretion, the evidence must be excluded.
Ms Akol was an eye witness to the attack on Mr Wach on any view. She is the alleged victim of one of the counts. Senior counsel for the prosecution frankly conceded in the course of submissions that, given her unreliability, she would not call her unless she had leave to cross-examine her.
My conclusion is that leave to cross-examine should be given under s 38(1) and s 38(3) of the Act because Ms Akol’s evidence is unfavourable to the prosecution, she has not made a genuine attempt to give evidence about matters of which she can be reasonably supposed to have knowledge, and because she has made prior inconsistent statements. As to the prosecutor’s position concerning calling her, I adopt the observations of Curtain J in DPP v McRae.[3]
[3][2010] VSC 114, at [20] (“McRae”).
Submissions were also made as to the admissibility of evidence of the prior inconsistent statements and as to the purposes for which those statements could be used if admitted. The relevant evidence in this respect is Mr Perna’s evidence as to what he was told by Ms Akol at the scene, Mr Perna’s evidence as to what he was told by Ms Akol at the hospital, the written statement of 26 February 2009 which Ms Akol signed, and the written statement of 3 May 2010 which Ms Akol signed.
Counsel for both parties agreed that the High Court decision in Adam no longer applies insofar as it concerns the application of the credibility rule (s 102) due to legislative changes since that decision. It was the joint position of both counsel, with which I agree, that the credibility rule will apply. Thus, the statements and the evidence about the statements will be admissible if the requirements of s 103 or s 106 of the Act are met. I leave to one side for the moment issues of s 137 or imposition of conditions.
If the evidence of the prior inconsistent statements is admitted under either s 103 or s 106 then, pursuant to s 60, the hearsay rule will not apply. This means that the prior statements, to the extent the jury finds that they were made, will be evidence of the facts asserted in them.
The submissions made on behalf of Mr Anyang concerning Ms Akol were principally addressed to s 137, with a “fallback” submission in relation to imposition of a limitation under either s 136 or s 192.
In relation to s 137 counsel for the defendant submitted that I should not admit the evidence of the prior statements because its probative value was outweighed by the danger of unfair prejudice. My own distillation of the factors he addressed in that regard is as follows:
(1)Her various accounts are not only inconsistent with each other, but her statement of 26 February 2009 is inconsistent in many important respects with the statement of Mr Wach and the evidence which he gave on the committal.
(2)There is real doubt about the extent to which material in the statement of 26 February 2009 was the result of misunderstandings or language difficulties.
(3)The defence is put into a very difficult position if the statement of 26 February 2009 is admitted, given that the witness denies having said many of the things set out in that statement. The defence cannot attack the credibility of these matters through her as she denies having said them.
(4)There is a significant risk that the prior statements will be used by the jury, impermissibly, to reason that the accused man has pressured the witness into now giving the account of events which she does.
(5)Ms Akol has revealed herself to be so unreliable that no jury would be able to give weight to any of the versions she has given, and in particular, to the versions given on 26 February 2009.
In relation to the inconsistencies between the statement of 26 February 2009 and the statement of Mr Wach and the evidence which he gave on the committal, it does seem to me that there are inconsistencies. It seems to me, however, that such inconsistencies often arise between eye witnesses to unexpected, rapidly occurring, violent events; particularly when the witnesses are themselves participants in those events.
In the witness box on the voir dire Ms Akol demonstrated a good understanding of English and a good ability to speak English. Her capacity in this regard was such that she dismissed the interpreter, because, it seemed to me, she perceived her English to be better than the interpreter’s. Ms Akol’s English is not perfect and there is the capacity for misunderstanding as a result. But the discrepancies between the statement of 26 February 2009 and the version of events which she now gives are not explicable by that circumstance. They are too pervasive and too consistent in their effect to be explicable solely by misunderstanding.
The difficulty which counsel for the defence submitted would arise in testing the version of events given in the statement of 26 February 2009 reflects the difficulty which the defence articulated in Adam.[4] The same problem does not arise here. This witness was present at the scene and she can be questioned not only about what she is recorded as having said about it, but also about what did occur. I apprehend that she would readily agree that the statement of 26 February 2009 does not record either what she said or what in fact occurred. It is also important that the primary position of the defence is that she has so little credibility that none of her versions could be accepted. The defence will be well able to test her evidence on that basis.
[4]Adam at [29]-[30].
The concern expressed by the defence as to the possibility of impermissible reasoning is one which will need to be addressed if, as matters transpire, it is perceived that a risk of such impermissible reasoning exists. That is a matter which can be dealt with by directions and I will hear counsel on the appropriate directions to be given.
As to the submission that none of the witness’ versions has any credibility and that a jury could not place weight in any of them, I consider that that is a matter properly left to the jury. I will hear any further submissions sought to be made on that matter after she gives evidence.
In relation to the issue of what constitutes unfair prejudice I adopt the observations of Curtain J in McRae.[5]
[5]McRae at [50]-[51].
The prior statements, particularly the statements on 26 February 2009, in my view do have probative value. It seems to me that it will be open to the jury to conclude that what the witness told Mr Perna on the day (assuming they are satisfied that she did tell him what he says she did) is of assistance and that what she is saying now is not. That, of course, will be a matter for them. I do not consider that the probative value of the evidence is outweighed by the danger of unfair prejudice as a result of the factors referred to by the defence.
The fallback position of counsel for the defence was that the use of the prior statements should be limited to issues of credit by either the exercise of discretion under s 136 or the imposition of a limitation upon leave to cross-examine under s 192. Thus, in effect, the defence contended that the prior statements should be used in this particular case in the way in which they were traditionally used, that is before the reforms introduced by the Evidence Act 2008.
I do not think that that course should be adopted. To do so would be to reverse the reform consciously introduced by the Evidence Act 2008.[6] This can, of course, be done relying on the provisions of the Act itself, but I do not consider that there are circumstances peculiar to this case which warrant that course. The matter should be left to the jury to assess the credibility of the various statements she has made, assuming for these purposes they are satisfied she made them.
[6]See McRae at [21].
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