R v Arnott (Ruling no 3)
[2006] VSC 524
•22 December 2006
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1510 of 2005
| THE QUEEN |
| v |
| RUSSELL LAURENCE ARNOTT |
---
JUDGE: | Williams J | |
WHERE HELD: | Melbourne | |
DATE OF RULING: | 22 December 2006 | |
CASE MAY BE CITED AS: | R v Arnott (Ruling No 3) | |
MEDIUM NEUTRAL CITATION: | [2006] VSC 524 | |
---
CRIMINAL LAW – Murder – Ruling as to proposed content of prosecution final address – Whether prosecutor should be permitted to ask jury to draw inference from evidence of accused.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Rose SC | Office of Public Prosecutions |
| For the Defendant | Mr J Desmond | Doogue & O’Brien |
HER HONOUR:
Russell Laurence Arnott faces a charge that he murdered Daniel Zigante at Altona North on 3 March 1985. The trial has reached the stage at which counsel for the prosecution is about to commence his address. Counsel for the defence has sought a ruling as to whether counsel for the prosecution should be permitted to make certain submissions to the jury in the course of his address. Those submissions relate to the issue as to the source of Mr Arnott’s knowledge that the bullet which killed Mr Zigante was a .22 calibre long rifle bullet.
The prosecutor proposes to ask the jury to conclude that Mr Arnott shot Mr Zigante because he knew details relating to the killing which were not in the public domain. In particular, he proposes to rely upon the evidence from Mr Arnott under cross examination that a man named Mark, whom he met in about 1987,[1] informed him that a 22 was used in the shooting of Mr Zigante. Mr Arnott said, under cross-examination, that he did not know whether he had heard that fact elsewhere and that it was quite possible that he may have heard the information somewhere else, before or after hearing it from Mark.[2] Mr Arnott subsequently said that he left Footscray TAFE shortly after that and did not see Mark again.[3] Mr Arnott said that the only thing he could remember Mark saying was that it was a 22 used in the Zigante killing.[4] Mr Arnott repeated that he could not tell senior counsel for the prosecution if that was the only place he had heard that said.[5]
[1]T1382 lines 14 – 17.
[2]T1382 lines 29 – T1383 line 2.
[3]T1383 lines 18 – 20.
[4]T1384 lines 17 – 19.
[5]T1384 lines 20 – 21.
Mr Arnott was subsequently asked whether Mark told him about the weapon that had been used to kill the security guard. He said: “No, not to his knowledge.” The following exchange then occurred during the cross examination:
Question:Did he tell you the type of weapon that the bullet had been fired from?
Answer:Not that I know of.
Question:Did he tell you anything else about the ammunition that was used?
Answer:The type of weapon? Yeah, a 22. That’s what a 22 is, it’s a type of weapon. That’s the type of projectile, the bullet, and it goes into a 22 gun, or a .22.
Question:He didn’t tell you anything else about the ammunition that was used, did he?
Answer:Not that I’m aware of.[6]
[6]T1387 lines 11 – 18.
Senior counsel for the prosecution then went on to suggest that at the previous trial, Mr Arnott had agreed that Mark was the sole source of his knowledge about the calibre of the cartridge used to murder the man. Mr Arnott’s response was interrupted by an objection from counsel for the defence to the effect that the whole passage of cross examination should be put to his client. Mr Rose continued by saying that he would put the passage of cross examination from the previous trial to Mr Arnott again. He then put to him a series of questions and answers culminating in a question as to whether the accused man said that Mark was the sole source of information about the calibre of the bullet. He had responded “To the best of my knowledge, yes”.
When pressed as to whether he had no other source of information about the nature of the fatal bullet he responded:
“Yes, the bullet itself, no, as far as I know, as far as I know, Mark was the only one I heard it about.”
Mr Arnott agreed that he had been asked those questions and given those answers at the previous trial. Mr Arnott was not subsequently asked whether those answers were true.
Senior counsel for the prosecution did go on to put it to Mr Arnott that the position was that he couldn’t identify anyone from twenty years ago or after that, apart from Mark, who gave him some specific information about the Zigante murder. Mr Arnott responded “Apart from Mary”.[7] He went on to say that he didn’t know whether he discussed it with the only close friend he had at the time.[8]
[7]T1391 lines 27 – 30.
[8]T1392 lines 1 – 2.
Subsequently, Mr Rose suggested to Mr Arnott that he fired the gun, fired it at close range into the back of the security guard.[9] Mr Arnott denied the accusation.
[9]T1407 lines 18 – 20.
Senior counsel for the prosecution told the Court of his intention to refer the jury to the admissions in the record of interview by the accused that he used .22 long rifle ammunition to kill the guard. Senior counsel intends also to refer the jury to the evidence of the firearm and tool mark examiner, Mr Pringle, as to the different types of .22 calibre ammunition: namely, .22 short, .22 long and .22 long rifle. He will say to the jury that the accused’s admission is a significant one as there was no publicity about that, even at the inquest where only a .22 was referred to. He will refer the jury to the evidence of Mr Anastasiadis as to the contents of the statements and the evidence given at the inquest. At the inquest, Mr Pringle gave evidence that the damaged bullet, given to him in a jar labelled ‘Zigante’, was a .22 calibre bullet which, he concluded, had been fired from a barrel bearing six lands and grooves with a right hand twist.[10] Mr Anastasiadis read the coroner’s findings during re‑examination.[11] The coroner’s report of his findings read by Mr Anastasiadis contained no reference to the calibre of the bullet.
[10]T1123 line 31 – T1124 line 3.
[11]T1125 line 23 – T1126 line 29.
Mr Rose proposes to say to the jury that they might think that only the murderer would know about this issue. He is going to ask “How could the accused have known this unless he either purchased the ammunition or loaded the weapon?” He will continue to suggest to the jury that Mr Arnott was familiar with firearms and that it wasn’t just a lucky guess. He will state that Mr Arnott knew the type of ammunition because he fired the shot into Mr Zigante.
Senior counsel for the prosecution submits that the issue was opened by him to the jury. He says that he opened on the basis that a number of things in the record of interview that police were told were not in the public arena. The calibre of the gun and the pins were mentioned by him, and he indicated to the jury that there would be other matters that would come out at the end of the trial which the prosecution would submit at the end were never in the public arena.[12] Senior counsel for the prosecution stated to the jury that those matters, it would be submitted at the end of the case, were never in the public arena and could only have been known by the killer.[13]
[12]T47 lines 2 – 8.
[13]T47 lines 5 – 8.
Senior counsel then submits that the evidence adduced by the prosecution as to what was in the public arena and the evidence of Mr Pringle as to the different types of .22 ammunition, as well as the evidence of the calibre of the bullet retrieved from Mr Zigante’s body, would have made it clear to the accused man that there was an issue as to the source of his knowledge of the particular type of .22 calibre bullet fired by Mr Zigante’s killer. The accused man had been in court throughout the trial. Further, counsel for the defence had cross examined Mr Pringle at some length on the differences between the various types of .22 ammunition: .22 short, .22 long and .22 long rifle. Senior counsel for the prosecution argues that the sole forensic purpose of that cross examination was to reduce the effect of the admission made of a matter not in the public arena. Senior counsel for the prosecution submits that Mr Desmond could have sought an explanation on this issue in re-examination and chose not to do so.
Mr Rose argues that the defence is not taken by surprise in the Browne v Dunn sense. He says that he is not seeking to contradict any evidence in chief of Mr Arnott. On the contrary, he relies upon it. He submits that the prosecution does not challenge the whole record of interview, but argues that some of the things stated to police by Mr Arnott are indeed true.
Senior counsel for the prosecution submits that he gave Mr Arnott every opportunity to indicate the source of this particular piece of information.
Counsel for the defence argues that the accused man ought to have been directly challenged in relation to what is a critical issue in the case, the source of his knowledge of the calibre of the bullet. He relies upon the recent recognition by the Court of Appeal of the applicability of the rule in Browne v Dunn in criminal proceedings.[14]
[14]See: R v Rajakaruna (2) [2006] VSCA 277 at [45] per Redlich J.A.
Counsel cites the statement of principle in R v Demiri that: [15]
In the context of the cross-examination of a prosecution witness, the rule of law and practice is necessary to give the witness the opportunity to deal with such evidence – or such inferences as may be drawn from the evidence – as the accused proposes to rely upon and which contradict the testimony of the witness. Such a challenge to the witness’s testimony is also essential to the jury’s understanding of what facts are truly in issue. It enables the jury to make an assessment of the credibility of the witness in relation to those issues.
[15][2006] VSCA 64 at [35] – [36].
Counsel also refers to the general statement of principle in Bulstrode v Trimble,[16] when Newton J explained the two aspects of the rule in Browne v Dunn:
In its first aspect the rule … is a rule of practice or procedure designed to achieve fairness to witnesses and a fair trial between the parties. In the second aspect it is a rule relating to weight or cogency of evidence.[17]
[16][1970] VR 840.
[17][1970] VR 840 at 846.
Mr Desmond argues that Browne v Dunn requires that an accused person be entitled to have a significant point to be made in closing address put to him under cross-examination. He says that Mr Rose’s question to Mr Arnott “He didn’t tell you anything else about the ammunition that was used, did he?” was not a specific question of the type required. He says that senior counsel for the prosecution had an obligation to ask his client a question which he phrased as follows:
“So, Mark tells us it’s only a .22. Where do you get the LR from because Mark hasn’t told you?”
Such a question would have given the accused man an opportunity to explain how he acquired that piece of information. The prosecution had not given him that opportunity. He submits that if senior counsel for the prosecution wishes to advance an argument at the end of the case on the basis of any discreet of information in the interview, fairness dictates that he should challenge the witness on that point, so that the witness has an opportunity to address it. He submits that the rule in Browne v Dunn applies to force the prosecutor to explore inconsistencies between one part of a witness’s evidence and another part to the extent he wishes to rely upon that inconsistency. He seeks to support that proposition with the cited passage from Demiri.
Mr Desmond submits that he had no obligation to raise the matter in re-examination, because there had between no cross-examination on the point.
Mr Desmond also argues that the matter was not opened by the prosecutor. He contends that the jury would not be aware what the source of knowledge of the LR calibre of the .22 bullet would be when addressed by the prosecutor. He also argues that the prosecution cross-examined Mr Arnott as to the source of certain facts stated by him to police in the record of interview, but not this one specifically. That was unfair to the accused, notwithstanding the prosecutor’s general questions to him about what was told to him by the sources of information he had identified.
Finally, Mr Desmond seeks to characterize the debate as one relating to the filling of a gap in the prosecution case. I am not persuaded by this argument, as the prosecution rather sought to rely upon the absence of evidence as to the source of knowledge of the calibre of the bullet.
Mr Desmond also argues that his client had been unfairly misled by not having the issue directly put to him upon which the prosecutor was going to invite the jury to convict.
Mr Desmond submits that the prosecution seeks to impugn the accused on the basis of what he describes as “that discreet piece of information about the LR” to have him convicted. He says that his client had not been put on notice of that either through the opening or any earlier examination of Crown witnesses or indeed in the cross-examination. A party is obliged to give appropriate notice to that person’s witness of any imputation that is to be made, in his submission.
Conclusions
I am not persuaded by the submissions made in support of the application by counsel for the defendant. Essentially, he asserts that senior counsel for the prosecution should have put it specifically to Mr Arnott that he had failed to give evidence to support his assertion that he knew of the type of .22 calibre bullet used to shoot Mr Zigante from a source or source other than his own knowledge. The rule in Browne v Dunn is not, in my view, applicable. This is not a case of a witness being denied the opportunity of explaining evidence adduced by the opposite party.
The conclusion which the prosecution will ask the jury to reach will be based upon the accused man’s statement to police as to the type of calibre bullet used in the killing and his description of the information obtained from various sources by himself. The accused man was given the opportunity by senior counsel for the prosecution to give evidence as to the source of his relevant knowledge. As it had been put to him that a particular person had not given him the relevant information, it would have been open to counsel for the defence to ask in re-examination as to who was the source of the knowledge. The matter could also have been dealt with in examination in chief.
In my view, the defence was put on notice of the issue in the prosecutor’s opening. The evidence of Mr Pringle as to the different types of .22 calibre ammunition, followed by cross-examination on the very point, together with the evidence of the accused man specifying in the record of interview the type of .22 calibre, show that the issue should not be one which takes the accused man by surprise, in any event.
I will refuse the application for a ruling preventing the prosecution from relying upon the evidence as to the accused’s statement in the record of interview in the matter proposed.
---
0