R v Klein (No.3)

[2008] NSWSC 337

CITATION:	R v Klein (No.3) [2008] NSWSC 337
JUDGMENT DATE :	2 April 2008
JUDGMENT OF:	Buddin J
DECISION:	Objection upheld.
CATCHWORDS:	Cross-examination by Crown of Crown witness upon credibility
LEGISLATION CITED:	Evidence Act
CATEGORY:	Procedural and other rulings
CASES CITED:	Aslett v The Queen [2006] NSWCCA 49 Lee v The Queen (1998) 195 CLR 594 R v Blick (2000) 111 A Crim R 325 R v Adam (2001) 207 CLR 96 R v Klein (2007) 172 A Crim R 290 R v Mundine [2008] NSWCCA 55
PARTIES:	Regina Gaby Michael Klein
FILE NUMBER(S):	SC 2002/2281
COUNSEL:	G Tabuteau (Crown) P McGrath (Accused)
SOLICITORS:	S Kavanagh (Director of Public Prosecutions) Crown Andrews Solicitors (Accused)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BUDDIN J

WEDNESDAY 2 APRIL 2008

2002/2281 - R v GABY MICHAEL KLEIN

JUDGMENT – Application to exclude part of the cross-examination of Jacob Compagnon by the Crown upon his credibility (No.3)

1 HIS HONOUR: Application is made on behalf of the accused for the exclusion, pursuant to s 137 of the Evidence Act, of certain parts of the evidence which it is anticipated that the witness, Jacob Compagnon will give before the jury. By arrangement between the parties, it was agreed that the witness should first give evidence upon the voir dire in order to ascertain what evidence he is likely to give before the jury. During the course of that evidence, the Crown sought and obtained leave to cross-examine the witness pursuant to s 38 of the Evidence Act. That application was not opposed. The witness was also cross-examined by Mr McGrath who appears on behalf of the accused. It is in those circumstances that the present application arose. I have already upheld the objection (T691) and these are my reasons for so concluding.

2 Mr McGrath submitted that it was appropriate to proceed upon the assumption that the Crown will again seek, and indeed obtain, leave to cross-examine the witness pursuant to s 38 of the Evidence Act when he gives evidence before the jury. He conceded that as a result of that process, the contents of a number of prior inconsistent statements made by the witness will then form part of the evidence in these proceedings. Those statements were made on 17 February 2001, 10 August 2001, 29 August 2001 and 18 February 2004 respectively. As I understand the situation, the statement of 18 February 2004 sets out the totality of the evidence which the Crown maintains the witness is capable of giving. For completeness, it may be observed that the witness gave evidence at a committal hearing on 29 May 2002. During those proceedings he gave evidence in accordance with the first three statements to which I have referred.

3 The witness gave evidence at the accused’s first trial on 9 and 10 March 2005. At that trial, he resiled in significant respects from what he had said in his evidence at the committal hearing and in the four statements to which I have referred. The jury at that trial was unable to agree and was discharged.

4 The witness then gave evidence at the accused’s second trial between 12 and 14 September 2005. He took a similar stance whilst giving evidence at that trial, namely that the contents of his earlier statements and his evidence at the committal hearing were untrue. The accused was convicted by the jury at that trial. However his conviction was overturned by the Court of Criminal Appeal and so the present proceedings represent the accused’s third trial.

5 As I have said, the witness has given evidence on the voir dire. He has, in effect, maintained the position which he adopted at the two previous trials.

6 It is necessary to briefly outline something about the Crown case in order to place the present application in some sort of context. In doing so, I am not endeavouring to provide a complete summary of how the Crown puts its case. The Crown alleges that the accused shot and killed the deceased, Gary Moustafa, at his business premises at about midday on 15 February 2001. The accused and the deceased were known to each other through the mobile phone business. The deceased’s business apparently owed money for the purchase of mobile phones to the accused’s brother. Endeavours by the accused’s brother and other members of his family to recover the outstanding money had been unsuccessful.

7 It does not appear to be in contest that the accused was in the vicinity of the premises in which the deceased was killed at a time that was close to when the fatal incident occurred. To that end, various eyewitnesses made observations of a man either riding or sitting on a Honda 650 motorcycle. The man was wearing a white helmet. Other descriptions of that man, together with CCTV footage from a nearby service station, as well as admissions made by the accused in a recorded interview with police, in combination provide evidence which would entitle the jury to conclude that the accused was in the general vicinity of the crime scene at relevant times. Moreover, records of telephone calls made at the time strongly support the inference that the accused had an interest in, and a connection with, at least some of the persons who were in the premises in which the deceased was killed.

8 The Crown will also lead evidence from several witnesses that the accused had possession of a small hand gun at a time or times which are proximate to the shooting of the deceased. There is also a body of evidence concerning the discovery of a motorbike at premises with which the accused was associated. It matches the description given by the eyewitnesses to whom I have referred. It would appear that efforts had been made to alter its appearance.

9 The evidence which the witness originally indicated he was prepared to give, is set out as I have said, in the statement of 18 February 2004. The relevant parts of it appear below:

Sometime in the afternoon on Thursday 15th February 2001, Gaby rang me on my mobile phone [phone]). At the time, I was at a demolition site in Epping. He said something like, “It’s a code five. I’m at your house, how quick can you get here?” A “Code 5” means what ever you’re doing, just leave. It means the shit has hit the fan. I could not leave straight away, because I was the supervisor and we only had one truck. I said, “It’s not straight away, about an hour.”
It took me an hour an a half to get to 8 Higginbottom Road. Gaby was already in the house (spare key has been in same place for years). Gaby said, something like “you gotta give me a lift. There’s a secret, but it dies with you.” I think he had a motor bike helmet and a backpack with him. Gaby usually rode an XR600, red, grey and white. I do not recall seeing the bike at that time.
When we went to my truck (an NKR 3 or 4 tonner – “Demo” number plates), Gaby said “Give me your shirt.” I took my shirt off and gave it to him. He put his shirt in his backpack. I began driving with no shirt and Gaby said, “Drive past Auscall”. It’s the mobile telephone shop next to the Tennis Ranch at Gladesville. It think its now called “Chit Chat”. I drove east along Victoria Road and as we went past “Auscall”, Gaby said, “Look at that.” I saw police blue and white tape around the shop. Gaby then said, “I killed someone?” I said “Who was it?” and he said “Gary Moustafa”. I said “Which one was that?” and I think he said, “It’s the short one, Ken’s brother.”
Gaby said something like, “Take me to Kenthurst.” I didn’t really want to know why it happened, so I didn’t talk about it.” On the way, Gaby said, “I was waiting in the petrol station before. I was waiting for the perfect opportunity.”
I said, “Don’t you know they have cameras?” Gaby said, “But I didn’t steal anything.” I said words similar to, “If it’s a murder they are going to check the cameras” and Gaby said, “But I wore my helmet”. I said, “They’ll know you were riding a motorbike if you had a helmet. There’s cameras at the petrol pumps and they will know your number plate”. He said, “I’d already removed the number plates.”
Later I said to Gaby, “What are you gonna do now?” and he replied, “With no murder weapon there’s no murder, and besides I was wearing gloves.” I said, “Do you have another pair of gloves?” He said, “Maybe, why?” I said, “You have to get another pair of gloves which look the same but don’t have the gun powder on them. Get clothes, shoes, everything that looks the same but isn’t the same.” I don’t know whether he did this or not.
On that day, I don’t specifically remember loading Gaby’s motorbike on my truck at my house or unloading.
Sometime that day, either on the way over to Kenthurst or just after we arrived at Kenthurst, I said to Gaby, “You have to wash your hands with as many chemicals as you can.” Gabby said, “Why?” I said, “Because they are probably going to take swabs off you.” When we were in the shed, I remember Gaby washing his hands with chemicals from the shed. He also used the same chemicals to wash the grips and handle bars. He also peeled some stickers off the bike. One was a “Husqvarna” sticker. He then put the number plates back on the bike. At the time, there were some of Danny’s workers that were around the yard. They didn’t seem to be paying attention to what we were doing.
When I was at Kenthurst, I saw Danny and his wife Sandra. Danny’s house is a large single storey house with sandstone garden beds. I only stayed there a short time and then went home to see my girlfriend, Kim Toussant.
Later that evening about 10.00 pm I went to Castle Hill Tavern to meet Gaby for a drink. He was in the poker machine bar with a guy named Grant Law. I hadn’t seen Grant for about 6 months. Gaby appeared fairly intoxicated. About 10 minutes in the conversation, Grant Law said “Did you hear about the shooting?”
I said, “What happened”?
Grant said, “Someone shot one of the guys at Chit Chat”.
I said, “Who was it?”
Grant said, “Gary”.
I said, “Which one is Gary”?
Grant said, “He’s the shorter one.”
Gaby said, “Adam found him. It’s pretty shocking isn’t it”?
I said, “Have they got any suspects”?
Gaby said, “They’re questioning Adam”.
We continued with other general conversation and I left about 45 minutes later.
A couple of days after the shooting, I think it was Saturday (17th February) I met up with Gaby at the cemetery, where I was visiting my father’s grave. He arrived 10 minutes after I got there.
He said “I have just come back from the Cops station. They found the car. What are your thoughts on that”?
I said, “It’s pretty fucked. What happens now”?
He said, “I told them that you put it in my garage”.
I said, “Where does that leave me”?
He said, “I’d think they would probably be looking for you right now”.
I said to Gaby, “Have you got rid of the gun yet”? He said something like, “Not yet, I gotta get rid of it”.
I said, “Where is it”? Gaby said, “In your roof”.
I said, “What the fuck is it doing in my roof…get rid of it…Melt it down”.
I then said, “What are you gunna do. It’s looking bad, you’re gunna go to gaol for a long time. Gaby said, “I won’t be here for that”.
We then went back to my place in his four wheel drive. We went into the bathroom and Gaby climbed up on the sink and pushed back the manhole. He pulled something down like a cotton moneybag and rolled it back and showed me a revolver. It was a silver colour, stainless steel…I’m not sure of the colour of the butt. The calibre was smaller than a 9mm. He then left my house.

10 As I have said, the witness has now resiled from much, but not all of what appears in that statement. As I have also said, he gave evidence on the voir dire. He said that he received a phone call on 15 February 2001 from the accused at around lunchtime. He said that he had returned home and following a discussion about DVDs, had been requested by the accused for a lift to Kenthurst. He gave evidence that they had then driven past the deceased’s premises (in circumstances in which it was clear that the decision to do so was at the behest of the accused) before returning to Kenthurst. He said that he had given the accused his shirt when requested to do so. He also said that he had observed the accused with a helmet and a backpack.

11 The witness denied having had the other conversations with the accused, either on that day or on the Saturday other than the conversation which took place at the Castle Hill Tavern on the night of the murder, which are contained in his statement. Moreover, the witness also denied that the other things, which he said in his statement he had observed, had occurred although he did concede that he had met up with the accused at the cemetery on 17 February.

12 It is convenient to now have regard to what the Court of Criminal Appeal said when considering the accused’s challenge to his conviction at the previous trial because it is directly relevant to the present application. In R v Klein (2007) 172 A Crim R 290, Beazley JA, with whom Grove and Simpson JJ agreed, said:

The appellant’s first ground of appeal was stated in the following terms:
(a) the trial miscarried because of the admission into evidence of prior statements of the witness Jacob Compagnon which contained assertions of what the appellant had said to him, and which were second hand hearsay and inadmissible
(b) the trial miscarried because the learned trial judge did not give the jury adequate directions about what use could be made of the prior statements of the witness Jacob Compagnon which contained assertions of what the appellant said to him
Although this ground of appeal raised two separate issues, the principal argument on the appeal was confined to the issue raised in Ground 1(b). Presumably, this was because counsel for the appellant at trial had agreed that the evidence was admissible by way of the various statements being read to Jacob Compagnon and because his Honour had indicated and it had been agreed by both the Crown and counsel for the appellant that the prior statements could be used, and only used, in relation to the credit of Jacob Compagnon. There is in any event authority that such evidence is admissible on a question of credit: Lee v The Queen (1998) 195 CLR 594; 102 A Crim R 289. The essential argument was that the trial judge failed to give adequate directions to the jury as to the use that could be made of Jacob Compagnon’s prior statements to the effect that the appellant had confessed to the crime. The appellant needs leave to argue this ground of appeal as no issue was raised by counsel at trial that the direction was wrong: r 4 of the Criminal Appeal Rules 1952 (NSW). I deal with
the question of leave below.

In Lee v The Queen , a similar situation arose as occurred here. A principal witness, Mr Calin, had made a statement to the police that the appellant, Lee, had confessed to the crime with which he was charged, namely, assault with intent to rob. He signed a statement to that effect and later confirmed that he was willing to give evidence about the matter. Sometime before the trial, however, he informed the police that he was not willing to give that evidence, because he had heard that he was being called “a dog”.

Mr Calin was nonetheless called as a witness at the trial, but in evidence said that although he had spoken to Lee on the night of the offence and had asked him about money that Lee had owed him, he did not recall any other conversation with the appellant. The prosecution then sought leave to cross-examine Mr Calin about what he had said in the written statement to police. Leave was granted and, in that cross-examination, Mr Calin admitted signing the document in which he had recorded the confession he said the appellant had made to him, but denied that the statements in that document were his.
The trial judge directed the jury that if they accepted that Mr Calin had told police what was contained in the written statement, that was “evidence of the fact that the appellant did say those words”. The High Court considered that the effect of the trial judge’s instruction to the jury, taken as a whole, was that if the jury were satisfied that the appellant had said those words to Mr Calin, they were a confession by the appellant to the crime with which he had been charged.
The High Court said that that direction was erroneous. As their Honours explained at [30]:
… that evidence that Mr Calin had earlier reported that the appellant had confessed was not evidence of the truth of that confession. It should not have been received at the trial of the appellant, as it was, as evidence establishing that the appellant had committed the offence.
Their Honours said further at [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 [(the Evidence Act 1995 (NSW)] (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.
As I have already said, in this case, during the course of discussions with counsel, his Honour had already identified the use to which Jacob Compagnon’s prior statements could be put, namely, that they could be used in relation to his credit. However, in the passages of the summing up to which I have referred, other than that in which his Honour stated that the jury could use the prior inconsistent statements only to assess his credibility, his Honour explicitly directed the jury that if they were satisfied beyond reasonable doubt that Jacob Compagnon’s account of the conversation with the appellant was truthful, that is, honest and accurate and if they were also satisfied beyond reasonable doubt
that the confession was the truth, then not only would they find the appellant guilty, but indeed, had a duty to do so. His Honour further instructed the jury that, if accepted beyond a reasonable doubt, the confession directly proved the appellant’s guilt.
In those circumstances, I am not satisfied that the directions that his Honour gave, set out at [24] above, relating to Jacob Compagnon’s credibility, ameliorated, let alone corrected, his Honour’s previous express directions. Indeed, it may be that the jury could have understood these directions set out at [24] to mean that, having regard to the prior statements Jacob Compagnon made, then, if they did not accept his evidence in Court, that being the credit issue, they could reject his evidence and then accept what he had said in the prior statements. (pars 26-34)

13 In written submissions, Mr McGrath set out the nature of his objection in the following terms:

It is anticipated that the Crown will seek leave to cross-examine Compagnon pursuant to section 38 Evidence Act 1995 NSW (“the Act”) on the basis of his prior inconsistent statements. The contents of these statements may be divided into two categories: firstly, evidence of observations made by Compagnon, including observations of things the Accused did; and secondly, evidence of things the accused said to Compagnon which may amount to representations or admissions by the Accused of criminal conduct.

Evidence of the contents of the prior out of court statements falling in the first category may become evidence of the truth of what Compagnon asserted in those statements. Objection is taken to the cross-examination of Compagnon to establish that he had made prior statements in the second category. Such prior statements are admissible, but only as to the credibility of the witness Compagnon, and not as evidence of proof of the fact that the Accused asserted to Compagnon. In these circumstances the danger of unfair prejudice to the Accused as a result of the jury using such evidence for an impermissible purpose (evidence of proof of the fact) is sufficient to warrant exclusion of the evidence pursuant to section 137 of the Act.

14 Counsel’s concession about the use to which the prior statements falling within what he described as the first category could be put is undoubtedly correct: see R v Adam (2001) 207 CLR 96; Aslett v The Queen [2006] NSWCCA 49.

15 Section 137 is in the following terms:

In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.

16 The principles to be applied are uncontroversial: see, for example, R v Blick (2000) 111 A Crim R 325, and R v Mundine [2008] NSWCCA 55. It is common ground, in the light of the Court of Criminal Appeal decision in the present case, that the prior statements to which objection is taken cannot be used as evidence of the fact that the accused made the alleged admissions to the witness. On the contrary, those statements are only relevant to the witness’ credibility. That being so, strictly speaking, although counsel did not advert to this issue, the Crown would need to demonstrate that the material to which objection is taken has “substantial probative value” within the meaning of s 103(2)(a) of the Evidence Act.

17 It may be accepted that the question of the witness’ credibility will be an important question for the jury to resolve. Of particular significance will be its assessment of the reasons why the witness has chosen to resile from his original version of events. As I have indicated, there are a number of areas in which the witness has retreated from his original version. The retreat in respect of the alleged confessional material is but one of them.

18 The Crown case, in the absence of admissible evidence as to the alleged conversations between the accused and the witness, is an entirely circumstantial case. To allow in evidence of confessional material but then seek to limit its use, pursuant to s 136 of the Evidence Act, in such circumstances would present the jury with a very difficult task. Moreover, it is not as if the alleged confessional material is in a short compass. On the contrary, it is quite extensive and relates to a number of different issues.

19 The Crown submitted that the probative value of the evidence arises from the fact that the various pieces of circumstantial evidence are directly connected to the alleged conversations. Furthermore, the Crown submitted that without the alleged conversations the jury would be deprived of the full context in which to make an evaluation of the witness’ credibility. Whatever be the merits of that submission, what it does do however, as Mr McGrath pointed out, is to highlight the problem. Because the evidence as to the alleged utterances is so inextricably linked to the evidence of the various observations made by the witness, it will make the task of the jury of observing any direction as to the limited use of the impugned material even more difficult.

20 For what it is worth, there is substance in the submission advanced by Mr McGrath that there is plenty of other material upon which the credibility of the witness might be attacked which does not give rise to any perceptible risk of unfair prejudice. Furthermore, there will also remain that body of material which concerns the witness’ observations as to what the accused did which will be available to the jury for its consideration together with the rest of the circumstantial evidence upon which the Crown relies.

21 In the circumstances, and consistently with what was said by the High Court in Lee (supra at 41), I accept that the preferable course is to exclude the evidence. The Crown sought to distinguish Lee upon the basis that in that case it was the police officer who gave evidence as to what the witness had said in circumstances in which the witness maintained that the police had falsely attributed to him an assertion that the accused told him that he had committed the offence. That was to be contrasted with the present case in which the witness conceded that he had told the police that the accused had confessed to him but said that he (the witness) had been lying when he had done so. That submission, it seems to me, is more appropriately directed to the question as to whether the Court of Criminal Appeal in Klein should have applied Lee. I am of course bound by the Court’s decision. It is to be observed that an attempt by the Crown in Klein, albeit upon a slightly different basis, to distinguish Lee was rejected by the Court of Criminal Appeal. Although I accept that the Court in Klein did not directly address the present issue, presumably because it was not argued, I do not regard it as a reason not to apply s 137.

22 In my view, the evidence which is available to be used upon the issue of the witness’ credibility has very limited probative value. On the other hand, the danger of unfair prejudice to the accused is extremely high. The Crown candidly acknowledged that there was, at least, some risk of unfair prejudice. It would, in my opinion, be very difficult to formulate a direction to the jury as to the limited use to which the evidence could legitimately be put. Moreover, there is a very real likelihood that the jury would, notwithstanding directions to the contrary, misuse the evidence as proof that the accused had in fact done the very things which the witness asserts in his out of court statements that the accused told him that he had done.

23 Finally, it is to be observed that in respect of two matters, the witness gave evidence upon the voir dire of conversations which he failed to repeat when giving evidence before the jury. They related to the initial call which he received from the accused, which he had referred to as being a “code 5 call”, and a reference to the accused having at some stage told him that he had “a secret that dies with you”. However, the evidence which the witness gave on the voir dire about those matters was extremely imprecise. He was unable to recall in what circumstances the utterances had been made. Indeed, he said for example, that the “code 5 call” had not occurred on the day of the murder. Moreover, the references to those utterances by the witness came only after the Crown had put the propositions to the witness in the form of leading questions without having first obtained leave pursuant to s 37 of the Act to do so. Those considerations, coupled with the fact that those parts of the conversation formed no part of the witness’ evidence before the jury led me to conclude, consistently with my earlier ruling, that those conversations should also be excluded, pursuant to s 137 of the Act.

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