R v Klein (No.7)

[2008] NSWSC 339

CITATION:	R v Klein (No.7) [2008] NSWSC 339
JUDGMENT DATE :	4 April 2008
JUDGMENT OF:	Buddin J
DECISION:	Objection overruled.
CATCHWORDS:	Admissibility of affidavit sworn by the accused
LEGISLATION CITED:	Evidence Act
CATEGORY:	Procedural and other rulings
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

FRIDAY 4 APRIL 2008

2002/2281 – R v GABY MICHAEL KLEIN

JUDGMENT – Objection to tender of an affidavit of the accused (No.7)

1 HIS HONOUR: Objection was taken, on behalf of the accused, to the proposed tender by the Crown of an affidavit of the accused. It is common ground that it was sworn by the accused in the presence of his then instructing solicitor on 16 February 2004. I have not been advised as the circumstances in which the affidavit was created and nor has any issue of privilege been raised.

2 The accused is charged with the murder of the deceased which occurred in the latter’s business premises at 124 Victoria Road Gladesville on 15 February 2001. He was interviewed by police the following day and, amongst other things, admitted that he had been in the vicinity of those premises at a time that was proximate to when the offence occurred.

3 In the affidavit the accused provides a more detailed explanation for his presence in the vicinity of the deceased’s shop at the relevant time. The accused said, in essence, that Adam Kalnins, who worked in the business with the deceased and his brother, had approached him and asked him, for a reward of $1000, to provide an alibi for him (Kalnins) whilst the business was being robbed. Although Kalnins was aware, according to the accused, that the business was to be robbed he wanted to distance himself from the robbery itself. He was indeed planning to be out of the premises at the time of the offence and for that purpose enlisted the support of the accused in whose company it could subsequently be shown that he had been at the time.

4 The sole basis upon which the objection was ultimately pressed by Mr McGrath, who appears for the accused, was that a disclosure by the accused of his involvement in criminal conduct could give rise to the risk of unfair prejudice within the meaning of s 137 of the Evidence Act.

5 Mr McGrath conceded that it was appropriate, in evaluating that submission, to have regard to the way in which these proceedings have unfolded. This is in fact the third occasion on which the accused has stood trial on this indictment. At the accused’s first trial the affidavit in question was tendered by consent. No doubt it was relied upon by the accused even though he did not give evidence at that trial. At the accused’s second trial, counsel then acting for the accused, requested the Crown to once again tender the affidavit. The Crown declined to do so and the accused proceeded to give sworn evidence. During the course of it, he gave evidence in conformity with the contents of the affidavit. At the present trial, Mr McGrath made these observations during the course of his opening remarks to the jury:

I expect that you will be satisfied at the end of all the evidence in this trial that it was this man, the accused, Gaby Klein, who was riding that motor bike around the Pearson Street vicinity on 15 February 2001.

I expect on all the evidence you will hear in this trial that you will be satisfied that this man, the accused, Gaby Klein, was on 15 February 2001 up to no good. He was involved in some sort of criminal behaviour on that day.

6 In the light of those matters, it is difficult to comprehend how the material could be said to give rise to the risk of unfair prejudice. The criminality which the accused disclosed was in any event of a fairly minor nature and pales into significance when compared with the charge which he currently faces. As against that, there can be no doubting the fact that the material has probative value because it is a statement from the accused, provided to his own solicitor, going directly to the facts in issue. Indeed it is his own considered account of the relevant events of the day in question. In my view, there is no warrant for the exclusion of the material.

7 I have already overruled the objection (T1150). These are my reasons for doing so. Although in the upshot the objection was only faintly pressed, and indeed although counsel indicated that he did not require reasons to be provided, it seemed to me, the objection not having been withdrawn, that I ought to provide reasons, albeit in an abbreviated fashion. I indicated to counsel that should he consider it necessary to do so, I would provide the jury with a suitable direction in order to guard against the risk of any unfair prejudice arising from what the accused had disclosed in his affidavit.

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