R v Lewis
[1998] VSC 17
•6 August 1998
SUPREME COURT OF VICTORIA
CRIMINAL JURISDICTION
Not Restricted
No. 1433 of 1996
THE QUEEN
v
EDWIN ANDREW LEWIS
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| JUDGE: | TEAGUE, J. |
| WHERE HELD: | Melbourne |
| DATE OF RULING: | 29 June 1998 |
| DATE OF REASONS: | 6 August 1998 |
| MEDIA NEUTRAL CITATION: | [1998] VSC 17 |
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CATCHWORDS: | Leave to cross-examine accused as to prior convictions - Whether character of accused put in issue - Section 399(5) Crimes Act - Impugning prosecution witnesses. |
| Jones v Director of Public Prosecutions [1962] AC 635; R v Sarek [1982] VR 971 at 979; Curwood v The King (1944) 69 CLR 561; Phillips v The Queen (1985) 159 CLR 45; R v Hudson [1912] 2 KB 464; R v Brown [1960] VR 382. |
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| APPEARANCES: | Counsel | Solicitors |
| For the Accused | Mr. S. Langslow with | Victoria Legal Aid |
| Ms. J. Dixon | ||
| For the Crown | Mr. B. Morgan-Payler Q.C. | Office of Public Prosecutions |
| with Ms. M. Sexton |
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HIS HONOUR:
On 8 May 1998, a jury was empanelled for the trial of the accused, Edwin Andrew Lewis on charges of murder and theft. The accused gave evidence. On 22 June 1998, the accused commenced his examination in chief. On 25 June 1998, Mr Morgan-Payler, who appeared with Ms Sexton for the prosecution, applied for leave to cross-examine the accused as to his prior convictions. Written submissions were placed before me. I heard oral submissions from Mr Morgan-Payler and from Mr Langslow, who appeared with Ms Dixon for the accused. On 29 June 1998, I granted leave to the prosecution to cross-examine the accused as to his prior convictions. I said then that I would provide my reasons later. These are the reasons. I have annexed to them the written submissions of counsel.
The accused had given evidence at two earlier trials, at the end of which the jury had not been able to reach a verdict. On 27 November 1996, at the first unfinished trial, Cummins J was called upon to give a like ruling. That ruling was given after a brief discussion, in the course of which the then counsel for the accused indicated that it would be difficult to resist the application by the prosecution, and that he would not offer argument in opposition, and that he was not conceding the point. Cummins J ruled:
“I consider in view of the posture of the defence both in proposing to the jury that the accused did not have substantial bad character, and proposing to the witness, Amanda Higgins, that she killed her own parents, that the character of the accused has been put in issue, and accordingly the prior convictions of the accused, including that at Ringwood on 6 December 1993 and Box Hill on 4 July 1994, are probative and admissible.”
On 13 October 1997, at the second unfinished trial, although it appears that no formal granting of leave was made, the same counsel for the accused as appeared at the first trial referred to the ruling at the first trial, and noted that the defence did
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not concede the point, and said that he was not going to seek to dissuade Cummins J because a similar defence approach had been conducted at the second trial. Cummins J was called upon to make a ruling as to whether cross-examination as to a particular topic ought to have been permitted. In ruling that the cross- examination was appropriate, Cummins J said:
“The accused has put his character directly in issue. He has attacked the character of the prosecution. He has, indeed, sought to build upon his bad character in this trial by saying that the daughter of the deceased, who the accused said killed the deceased, manipulated him by saying to him, “Who will they believe, you or me?” in part because she knew about his prior convictions.”
Mr Langslow argued that I should ignore the rulings made at the previous trials because the character of the cross-examination of prosecution witnesses was different. I have included a summary of the position by way of background. It has otherwise no impact upon my ruling.
In this paragraph, I will set out the thrust of the prosecution case. The accused met Carmel Higgins, and then her daughter Amanda. In January 1995, he began a relationship with Amanda Higgins. He then met Paul Higgins, wife of Carmel and father of Amanda. The Higgins family lived in Forest Hill. Paul Higgins owned a Mercedes and Carmel Higgins owned a Porsche. In March 1995, the accused went to Queensland, where he met a Michael Woodbine and a Colin Twilley. During April, his relationship with Amanda Higgins began to falter. The accused planned to move to Queensland. He had little money, and Paul and Carmel Higgins appeared to have plenty. On Tuesday 18 April 1995, he telephoned Michael Woodbine, and spoke of getting hold of a Porsche. The accused sought the assistance of Woodbine to get false documents and to sell the Porsche. Woodbine contacted a Barry Davidson in Sydney about the false documents. Woodbine contacted a Michael Simeon in Sydney about selling the Porsche. On Wednesday 19 April, the accused bought a diver's knife. On Friday 21 April, he went to the Higgins’ home. He spoke with Paul and Carmel Higgins about his relationship
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with their daughter. Carmel Higgins had a lunch appointment with a friend, and the accused left the Higgins home when she left at about 12.30 p.m. The accused returned to the Higgins’ home and talked Paul Higgins into letting him in. The accused stabbed and so killed Paul Higgins. Shortly after that, Carmel Higgins returned to the house. The accused stabbed and so killed her. The accused left by taxi, and went back to join Amanda Higgins in Richmond. Later he bought a spade and other items, which he took to the Higgins home. There he buried the bodies, and cleaned up the blood. He stole from the Higgins home the Porsche and a number of items owned by Paul Higgins. On the Saturday, he drove the Porsche to Sydney, where he met up with Michael Woodbine and later with Twilley. He spoke of the killings to both Woodbine and Twilley. On the Monday, the accused drove the Porsche to the Gold Coast, where he met up again with Woodbine. The accused was apprehended on the Gold Coast by the police. He confessed to having killed the deceased in a taped record of interview with two policemen, including Detective Senior Sergeant Maher, and in a later taped conversation with an undercover policeman.
The prosecution called 51 witnesses, including Amanda Higgins, Michael Woodbine, Colin Twilley, Barry Davidson, Michael Simeon, and D/S/S Maher. There was extensive cross-examination of prosecution witnesses, and particularly Amanda Higgins and Michael Woodbine. Each was cross-examined for about 15 hours over 5 days.
The thrust of the defence case was that Amanda Higgins had killed her parents, and had then pressed the accused to help her cover up the killings.
I turn to the law. I start with Section 399 of the Crimes Act.
The relevant parts of sub-section 399(5) are as follows:
“(5)
A person charged and called as a witness pursuant to this section shall not be asked, and if asked shall not be required to answer, any question tending to show that he has ... been
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convicted of ... any offence other than that wherewith he is then
charged, or is of bad character; unless -(b) he has ... given evidence of his good character, or the nature or conduct of the defence is such as to involve imputations on the character of the ...witnesses for the prosecution ... ”
The prohibition in the sub-section may not apply because the proviso in paragraph (b) operates. I will return to this matter. Arguably, the statutory prohibition may not apply for other reasons.
First, it might not apply because the evidence would elucidate evidence already given by the accused of his previous troubles. See Lords Simonds, Reid and Morris in Jones v Director of Public Prosecutions [1962] AC 635 at pp.659, 665 and 689. It seems to me that there is strength in the comment of Lord Denning in Jones at p.667: “It is one thing to confess to having been in trouble before. It is quite another to have it emphasised against you with devastating detail.” I am not suggesting either that there was a particular emphasis shown or foreshadowed or that the detail here was capable of being devastating. I have also noted what was said as to Jones by McInerney J in R v Sarek [1982] VR 971 at 979. On balance, I would not have accepted that position if I had had to do so.
Secondly, it might not apply because the accused’s evidence would be relevant to a fact in issue. See Lords Denning and Devlin in Jones at pp.668 and 714. Mr Morgan-Payler submitted that the accused had made his bad character a central fact in issue. He referred me to two passages of the accused’s examination in chief. I propose to summarise them. The accused gave evidence as to his state of mind on two occasions when he said that he was speaking to Amanda Higgins. The first was when he said: that he saw her hit Paul Higgins; that he saw the knife in her hand; that she asked for his help; that he took the knife from her; that she said to him: “Who are they going to believe, Eddie, you or me?”; that he had already told her about the trouble he had been in with the police before; that he had the police
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record; that he did not then know her background. The second was when he said: that Amanda Higgins told him to wait for her at her parents’ home; that she had said that if he did not help her she would go to the police; that he thought then that only he had a criminal record; that he already had convictions; that he had no option but to help her. The accused deliberately introduced the evidence that he had convictions. He did so in a context where his convictions could be seen to be a powerful reason for accepting his defence - that he had not killed the deceased - but that he had merely assisted the perpetrator. His having convictions, and believing that Amanda Higgins did not, meant that his claim to have been merely helping her by agreeing to bury the bodies, could be the more readily accepted by the jury. With some reservations, I would have accepted that position if I had had to do so.
I have concluded that I need not decide either of the two previous questions. That is because I am clearly of the view that the proviso in 399(5)(b) applies. It does not apply on the basis that there was “evidence of his good character”. It does apply on the basis that the conduct of the defence was such as to involve imputations on the character of the witnesses for the prosecution. I have treated as the leading authorities the decisions of the High Court in Curwood v The King (1944) 69 CLR 561 and Phillips v The Queen (1985) 159 CLR 45.
Not every assertion reflecting injuriously upon witnesses for the prosecution will bring into play the operation of the proviso. It may be appropriate to consider both the number of witnesses whose character has been impugned and the character of the particular imputations. In the case before me, there were several witnesses whose character was impugned. Foremost was Amanda Higgins. Taken alone, the imputation that she, and not the accused, killed the two deceased is sufficient, in my view, to satisfy the proviso in 399(5)(b). I refer in that regard to R v Hudson [1912] 2 KB 464, for its authority both as to giving the words of the statute their plain meaning, as to which see Phillips at page 50, and as to the position where it is asserted that a prosecution witness was the perpetrator of the crime with which the
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accused is charged. There were other imputations on her character. She was cross- examined as to her prior convictions, as to her drugtaking, and as to other matters reflecting adversely on her character. The conduct of the defence was also such as to involve imputations on the character of other prosecution witnesses including: Michael Woodbine, Colin Twilley, Barry Davidson, Michael Simeon and D/S/S Maher. I need not go into the detail. Even if I had reservations as to relying upon the imputations as to Amanda Higgins alone, which I do not, the effect of taking the number and character of the imputations and the number of the witnesses together is to make the position as to the application of the proviso convincingly clear.
As is clear from Curwood and Phillips, the operation of 399(5) is subject to the basic discretion to exclude evidence otherwise admissible if it would unfairly prejudice the accused. As was stated in Phillips at page 58, once the discretion arises, the sole criterion governing its exercise is what fairness requires in the circumstances of the particular case. As was stated in Phillips by Deane J at pages 62 and 63, the discretion must be exercised for the purpose of ensuring that the trial of the accused is a fair one from the point of view of both the defence and the prosecution, with due regard being paid to relevant considerations. In Phillips at page 58, for guidance as to the range of considerations, reference was made to R v Brown [1960] VR 382.
I have taken into account a number of considerations relevant to the exercise of my discretion. I have taken into account the potential damage to the position of the accused arising from the jury being made aware of the details of his past convictions. In my view, the potential damage is moderate rather than substantial. I cannot see that the detail could be treated as anything like devastating. There is certainly material which a jury could and should be expected to take into account in assessing credibility. However, there is not potentially strongly prejudicial material consisting of many convictions for offences of violence. The convictions are mainly for dishonesty. To my mind, no special concern arises that there would be any
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difficulty attaching either to my warning the jury about what would be proper and improper use of the evidence or to the jury using properly the evidence of antecedents.
I have taken into account certain matters raised by Mr Langslow. One matter was that the prosecution did to some extent expose the bad character of its own witnesses. Mr Langslow argued that in doing so, the prosecution had laid a trap for the defence. He referred to the potential for such a course creating prejudice, both generally if the practice were followed in like situations, and specifically in this case. There is no doubt that the prosecution did open up aspects of the character of some prosecution witnesses. In the prosecution opening and in examination in chief, reference was made to Amanda Higgins’ problems with drugtaking and associated problems. Further, Mr Morgan-Payler described Michael Woodbine and Colin Twilley in his opening address as petty crooks. The prosecution in the examination in chief of Woodbine took him to events as to which he accepted that his conduct had led him into trouble with the police. The prosecution put to Barry Davidson questions that led to Davidson volunteering that he had a fake driving licence. The prosecution put to Michael Simeon questions that led to Simeon volunteering that Woodbine had pinched lunch money. I have no trouble accepting that it is appropriate for me to have regard to the circumstance that the prosecution has adopted the course of bringing out to some degree matters adverse to the character of one or more prosecution witnesses, in the opening address or in examining the witnesses in chief or both. In an appropriate case, the course could readily justify the discretion being exercised differently. It must be a matter of degree. The ventilating of character may be done on a large scale, a small scale or not at all. In the instant case, the prosecution chose to do it on what was in my assessment a small scale, but then the defence chose to do it on a large scale.
Mr Langslow also argued that I should make allowance for the particular approach adopted in this case by the defence to the cross-examination of prosecution
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witnesses. He argued that the defence approach was focused and necessary and circumspect, and that the only questions asked were those which were required as an integral part of the defence, rather than questions that were gratuitous, or part of a general attack. I am prepared to make some allowance for what was put to me in this regard. It appeared to me that an even broader and deeper attack had been made on witnesses at the earlier trials. On the other hand, I take the view that there were not only many attacks made on prosecution witnesses. There were many such attacks that were relatively unfocused, and some that were clearly gratuitous.
I have taken into account in the exercise of my discretion, the number and character
of the issues facing the jury where the account of the accused differed markedly
from that of an impugned witness. Where there are many significant issues, the
jury should more readily have made available to it information relevant to the
character and credibility of the witnesses whose testimony goes to those issues. The
jury had to consider which of the accused and Amanda Higgins ought to be
believed as to issues including whether, as he claimed, and she denied: she had her
own key to the Higgins home; on Wednesday 19 April, she asked him for the knife;
on Friday 21 April, she drove him to the Higgins home; she there stabbed her
father; she asked him to help her, and he agreed; she later adverted to her having
killed her mother; she pressed him to bury the bodies; she later handed to him
money and credit cards. The jury had to consider which of the accused and
Michael Woodbine ought to be believed as to issues including whether as
Woodbine claimed, and the accused denied: the accused told Woodbine that he was
about to get hold of a Porsche; Woodbine said that he went to Sydney because of
what the accused promised; the accused spoke several times to Woodbine about
having killed Amanda Higgins’ parents; the accused had thrown out of the Porsche
in Sydney items including gloves and some expensive clothes; the accused had
given Woodbine the knife to dispose of. The jury had to consider which of the
accused and Colin Twilley ought to be believed as to issues including whether as
Twilley claimed, and he denied: the accused had spoken to Twilley about the
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killing of Amanda’s parents; the accused bought some amphetamine from Twilley. The jury had to consider which of the accused and D/S/S Maher ought to be believed as to issues including whether as the accused claimed, and Maher denied, Maher had ill-treated the accused, by pushing him, putting a forearm to his throat, and hitting him with a telephone book. On many issues, indeed on many serious issues, the jury might well have found it difficult to make a choice. As a matter of fairness, the jury should have available to it information relevant to the character and credibility of all the witnesses in question which is not seriously out of balance.
Another matter I have taken into account is the damage done to the witnesses whose character was impugned. I am satisfied that substantial damage was done to the character and credibility of Amanda Higgins. It was done: through questions put to her in cross-examination; through questions put to other witnesses about her; through evidence given by the accused; through the accusations by the accused that she was the perpetrator and that she had lied to the accused as to many matters; through detailed cross-examination as to her involvement in prostitution, and in drugtaking; and through extensive cross-examination as to her convictions for shoplifting, for fraud and for an assault. I am also satisfied that substantial damage was done to the character and credibility of Michael Woodbine. It was done: through questions put to him in cross-examination; through questions put to other witnesses like Twilley and Simeon and Davidson; through evidence given by the accused; through the accusations by the accused that he had stolen from the accused and had lied to the accused as to many matters; through extensive cross- examination as to his involvement in the wrongful use of credit cards and drug use and other illegal or discreditable activities; and through cross-examination as to his convictions for credit card fraud.
I have also taken into account in the exercise of my discretion two further matters. I would note that, whether taken alone or together, they are no more than supplementary matters. They would not have sufficed to warrant the exercise of
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discretion favourably to the prosecution. The first is that I am also satisfied that questions put in cross-examination and evidence given by the accused which raised imputations as to the character of other prosecution witnesses in Colin Twilley, Barry Davidson and D/S/S Maher had the potential to do moderate, albeit not substantial, damage to their character and credibility. The second was, as noted earlier, that the accused gave evidence as to his own convictions. He chose to say without particularity that he had convictions. What he said was a matter which was relevant to a fact in issue. There was some probative value attaching to evidence which provided the particularity which he had chosen not to give.
In the end, it seemed clear to me that what fairness required in the circumstances of this case was that I should exercise my discretion by permitting the prosecution to cross-examine the accused as it had applied to do.
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