R v Jones & Ors (No6)

[2007] NSWSC 1157

CITATION:	R v Jones & Ors (No6) [2007] NSWSC 1157
JUDGMENT DATE :	11 April 2007
JUDGMENT OF:	Buddin J
DECISION:	Objection overruled.
CATCHWORDS:	Objection to cross-examination of two Crown witnesses upon their prior convictions
LEGISLATION CITED:	Evidence Act
CASES CITED:	Palmer v R (1998) 193 CLR 1 R v El-Azzi [2004] NSWCCA 455 R v Fowler NSWSC, 15 May 1997 R v Lewis NSWSC, 20 June 1996 RPS v The Queen (unreported NSWCCA, 13 August 1997)
PARTIES:	Regina Adam Jones Samuel Jones Elizabeth Jean Jones Lydia Jones Adam Samuel Jones
FILE NUMBER(S):	SC 2006/2009; 2006/2010; 2006/2011; 2006/2012; 2006/2007
COUNSEL:	J Pickering (Crown) D Price (Adam Jones) (Accused) D Stewart (Samuel Jones) (Accused) G Whitehead (Elizabeth Jones) (Accused) C Watson (Lydia Jones) (Accused) W Terracini SC/J Trevallion (Adam Samuel Jones) (Accused)
SOLICITORS:	S Kavanagh (Solicitor for Director of Public Prosecutions) Conaghan Hunter P/L (Adam Jones) Ross Hill & Co (Samuel Jones) Neil J O'Connor & Associates (Elizabeth Jones) Ian Rolfe Solicitor (Lydia Jones) Adamson Solicitors (Adam Samuel Jones)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BUDDIN J

WEDNESDAY 11 APRIL 2007

2006/2009 - Regina v Adam JONES
2006/2010 - Regina v Samuel JONES
2006/2011 - Regina v Elizabeth Jean JONES
2006/2012 - Regina v Lydia JONES
2006/2007 - Regina v Adam Samuel JONES

JUDGMENT – (No 6) Objection to cross-examination of Noah Smith Snr and John Smith upon their prior convictions

1 His Honour: I have already permitted counsel to cross-examine the witnesses Noah Smith Snr (also known as Noah Smith Snr) and John Smith upon their prior convictions. These are my reasons for doing so.

2 Noah Smith Snr and his father John Smith have each given evidence of having witnessed critical parts of the events which culminated in the death of William Smith. The deceased was the son of John Smith and the brother of Noah Smith Snr. Noah Smith Snr gave evidence from which it can be inferred that three of the accused, namely Sam Jones Snr, Adam Jones Snr and Adam Jones Jnr respectively, were involved in the attack upon the deceased. He said that he could see that Sam Jones Snr and Adam Jones Snr were both armed at the time. He also alleged that Sam Jones Snr struck him in the forehead with an iron bar causing an injury which required stitches.

3 John Smith gave evidence to similar effect. He also nominated Sam Jones Snr, Adam Jones Snr and Adam Jones Jnr as having been involved in the attack upon the deceased.

4 Both witnesses also gave evidence denying that either of them, or any other members of their family, was armed with a weapon that night. Each of the other members of the Smith family who have given evidence have similarly denied that any member of their family was armed or used a weapon during the course of the fatal incident. John Smith’s grandson, Noah Smith Jnr, however told the police that his grandfather was in possession of a jack handle during the course of the fatal incident but it is to be noted that he did not adhere to that account when giving evidence in this Court.

5 Noah Smith Snr was clearly quite badly injured during the course of the incident. His injuries, which included a significant wound to his back, required him to go to hospital. Police found various weapons in a location not far from where the incident had occurred. It appears that they had been concealed. As I understand the situation, it will be sought on behalf of the accused to have the jury infer that the weapons were used during the incident. Blood, consistent with Noah Smith Snr’s DNA profile, was located both on the blade and on the handle of those weapons. Noah Smith Snr conceded, whilst giving evidence, that he was unable to explain how his blood came to be on those weapons. The case advanced on behalf of the accused is that the witness bled from injuries he had sustained during the course of the fight and that the blood had dripped on to those weapons. As I understand it, it will be submitted that the bleeding may also have occurred whilst Noah Smith Snr was endeavouring to secrete the weapons in order to protect himself and/or other family members from being incriminated in the events of the night in question.

6 Adam Jones Snr and Adam Jones Jnr each pleaded guilty upon arraignment to manslaughter. The Crown did not accept those pleas and the only issue between them and the Crown is whether the Crown can prove their guilt of murder. I have been informed that in the case of each accused, the pleas indicate that although each accepts responsibility for having inflicted the fatal injury, each maintains that he was acting under provocation and/or in circumstances amounting to excessive self-defence at the time. In order to establish the offence of murder, the Crown will be thus obliged to rebut each of those matters beyond reasonable doubt.

7 In relation to that issue, the question of whether or not members of the Smith family were armed with weapons at the time assumes considerable significance. Indeed, it appears to be suggested on behalf of the accused that some members of the Smith family were in fact the initial aggressors. Be that as it may, it is certainly clear that the case advanced on behalf of all the accused is that various members of the Smith family had armed themselves with weapons in anticipation of a fight that evening. The evidence given by various members of the Smith family that they merely anticipated that a fistfight between Adam Jones Snr and the deceased would be conducted the next morning, is thus very much in issue.

8 The issues in relation to Sam Jones are not quite so clear-cut. His case appears to be that he was not originally involved in the fight but that he was subjected to an unprovoked attack by Noah Smith Snr, he being at the time, unarmed. Although he denies any role in the fatal incident, it may be that issues of self-defence and/or provocation arise in his case as well. The case for Elizabeth Jones appears to be that she was simply not present at the time of the incident.

9 The material about which counsel for Adam Jones Snr and Adam Jones Jnr wish to cross-examine concerns an incident in which the two witnesses were involved in 1996. I am informed that they were each convicted of common assault, malicious damage and affray in respect of which offences they were fined.

10 The fact sheet in respect of those offences reveals the following information:

On the 9th February 1996 at about 2 am the defendant has left his home at West Wyalong and driven to Caves Beach were (sic) he has met up with family members and several other people. He arrived at Caves Beach Caravan Park at about 9.30 am that morning.
They have had a discussion and then the defendant and four other males have left the caravan park in two vehicles armed with several baseball bats and a long wooden stick. They have travelled a short distance to Wallace St, Swansea.
Upon arrival the defendant and the four other males have exited the vehicles armed with the mentioned weapons. They have approached the premises of the victim and an argument developed outside.
The victim was then attacked and assaulted by all five males at the front of his premises by hitting him to the shoulders, back, lower back and buttocks with the weapons. During the assault the victim while being hit with the weapons has fallen through a closed security door of a neighbouring unit. The occupant of this unit a single mother with a young child has seen the assault and commotion taking place and has fled her unit screaming, she later stated that she was fearful for the safety of herself and her son.
The defendant and all other males have then re entered the vehicles and left the area. While leaving the area the defendant and his father were stopped in one vehicle and detained by police. Upon further inquiries being made they were arrested and conveyed to Belmont Police Station were (sic) they interviewed by way of ERISP and then charged with the matters now before the court.
As a result of the assault the victim received about six large welts across his back and buttocks region. He was in severe pain having trouble standing and walking. Ambulance was contacted as the victim had started to pass blood in his urine. He was conveyed to Belmont Hospital for treatment.

11 The Crown submits that counsel for the accused should not be permitted to cross-examine either of the witnesses about those 1996 convictions. In essence, the Crown contends that the evidence concerning the bad character of the witnesses, is simply an attack upon their credibility and as such is not permitted by s 103 of the Evidence Act. Section 102 and 103 are in the following terms:

102 The credibility rule
Evidence that is relevant only to a witness’s credibility is not admissible.

103 Exception: cross-examination as to credibility

(1) The credibility rule does not apply to evidence adduced in cross-examination of a witness if the evidence has substantial probative value.
(2) Without limiting the matters to which the court may have regard in deciding whether the evidence has substantial probative value, it is to have regard to:

(a) whether the evidence tends to prove that the witness knowingly or recklessly made a false representation when the witness was under an obligation to tell the truth, and

(b) the period that has elapsed since the acts or events to which the evidence relates were done or occurred.

12 “Credibility” is defined in the Act to mean:

Credibility of a witness means the credibility of any part or all of the evidence of the witness, and includes the witness’s ability to observe or remember facts and events about which the witness has given, is giving or is to give evidence.

13 It is submitted that the evidence lacks the necessary “substantial probative value” of which the section speaks. More specifically it is contended that ss (2)(b) cannot be engaged because the events of 1996 are simply too remote in time from the fatal incident which occurred in 2005.

14 The Crown submitted that the reason s 103 was introduced was to limit attacks upon the bad character of witnesses in circumstances such as the present. The Crown referred to the unreported decisions of Dowd J in R v Lewis NSWSC, 20 June 1996 and in R v Fowler NSWSC, 15 May 1997 as providing examples of cases in which cross-examination upon the prior convictions of a crown witness was not permitted. It may be conceded at once that it is no longer possible to attack a witness with impunity upon his or her prior convictions: see RPS v The Queen (unreported NSWCCA, 13 August 1997).

15 The Crown also referred to R v El-Azzi [2004] NSWCCA 455 in which a distinction was drawn between a criminal conviction involving an offence of dishonesty, which was treated as going to the issue of credit, and other discreditable behaviour not amounting to criminal conduct which was not so regarded. So much may be accepted although it is to be observed that the conclusion in that case turned ultimately upon the question of whether leave should have been given to cross-examine the accused, a question which gives rise to rather different considerations than those with which I am presently concerned.

16 I have had regard to the various authorities to which the Crown has referred me and to the principles enunciated in them. My task however is to determine the present question in the light of the particular factual issues which arise in the instant case.

17 The position, so far as the witness John Smith is concerned, is relatively straightforward. That is because of the following evidence which he gave in cross-examination:

Q. You would arm yourself, wouldn't you, to protect your children if you thought they were in danger?
A. Not really, no.

Q. If you thought that somebody was armed and they were going to hurt your children?
A. No.

Q. You wouldn't arm yourself?
A. No, I'm not that type of man to do that . (T 1085) (emphasis added)

18 That assertion, namely that he is not the sort of person who would arm himself even if his children were at risk, was volunteered by the witness and was clearly designed to persuade the tribunal of fact that he would not so conduct himself. It may be that such an assertion attracts the operation of s 103(2)(a) of the Act. Be that as it may, it is clearly evidence of a kind that has “substantial probative value” because the tribunal of fact can use the evidence in assessing the veracity of the claim that he is not “that type of man”.

19 The position so far as the witness Noah Smith Snr is concerned, is a little more complicated. One of the critical issues which will fall to the jury to determine is whether this episode was the result of a spontaneous, unprovoked attack upon unarmed and defenceless members of the Smith family by members of the Jones family who were then armed with weapons. More specifically, as I have said, the Crown will have to establish beyond reasonable doubt that none of the accused were acting in self-defence (including the possibility of excessive self-defence) and/or acting under provocation.

20 In assessing these issues, the jury will be called upon to determine the credibility of John Smith and Noah Smith Snr’s denials that they neither possessed, nor used weapons during the course of the fatal incident. In making that assessment, the jury will also need to take into account the evidence to which I referred earlier, which is capable of linking each of them to the possession of items alleged to have been used by them as weapons on the night in question.

21 It is not easy to distinguish between evidence relevant to credit and evidence relevant to a fact in issue. In Palmer v R (1998) 193 CLR 1, McHugh J observed:

The line between evidence relevant to credit and evidence relevant to a fact-in-issue is often indistinct and unhelpful. The probability of testimonial evidence being true cannot be isolated from the credibility of the witness who gives that evidence except in those cases where other evidence confirms its truth either wholly or partly. Furthermore, the conclusions drawn from that evidence are necessarily dependent on the credibility of the deponent. Zuckerman has correctly described the distinction between evidence as to the credibility of witnesses and evidence as to facts-in-issue as productive of absurdity. Indeed, in some cases, the credibility of a witness may be of such crucial importance that it is decisive of the facts-in-issue, particularly where, as in the present case, the witness is a participant in the very facts-in-issue or the only eyewitness to them. …
The rigid distinction between credit and facts-in-issue and the rules predicated on that distinction should therefore be minimised by the adoption of a more flexible view as to when matters going to the credibility of a witness should be admitted as evidence probative of the facts-in-issue. Evidence concerning the credibility of a witness is as relevant to proof of an issue as are the facts deposed to by that witness. There is no distinction, so far as relevance is concerned, between the credibility of the witness and the facts to which he or she deposes. The credibility of evidence is locked to the credibility of its deponent. The truth of that proposition is in reality recognised by the rule that a witness can be cross-examined as to matters of credit. Because that is so, it is irrational to draw a rigid distinction between matters of credit and matters going to the facts-in-issue. (par 51, 56) (footnotes omitted)

22 Bearing his Honour’s observations in mind, it seems to me that there is much to be said for the view that the impugned evidence does not relate only to questions of credibility. It may well be that it is also directly relevant to the facts in issue in the present case. That is particularly so when the tribunal of fact is assessing the conduct of the various accused in order to determine whether the Crown has excluded the issues of self-defence and/or provocation beyond reasonable doubt.

23 I need not however come to a concluded view about the matter because it is quite clear in my mind, given the factual matters which are in issue in the present case, that the evidence concerning the prior convictions of the witnesses has “substantial probative value”. That evidence has potential significance for the present case because it reveals that the two witnesses are capable of arming themselves with weapons, and then attacking another person whilst in the company of other family members. In the ordinary course of events, human beings do not conduct themselves in such a fashion. Even more so, they do not drive many miles in the middle of the night in order to render assistance to some-one engaged in a dispute even if that person is a family member. In the circumstances I do not believe that the passage of time between the two incidents deprives the evidence of the prior convictions of having “substantial probative value”.

24 However should I be wrong in my analysis of s 103 of the Act, I would nevertheless conclude that the impugned evidence would amount to tendency evidence within the meaning of s 97 of the Act. In the circumstances, the Crown quite properly indicated that it would not oppose my dispensing with notice under s 100 of the Act. Given that there is no conceivable prejudice to the Crown, I formally dispense with the requirement that notice be given. That being so, the evidence needs to have only “significant probative value”. For reasons which have been given earlier, I am of the view that it readily meets that test.

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