R v Lewis

SUPREME COURT OF VICTORIA
CRIMINAL JURISDICTION

Not Restricted

No. 1433 of 1996

THE QUEEN

EDWIN ANDREW LEWIS

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JUDGE:	TEAGUE, J.
WHERE HELD:	Melbourne
DATE OF RULING:	22 June 1998
DATE OF REASONS:	6 August 1998
MEDIA NEUTRAL CITATION:	[1998] VSC 16

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CATCHWORDS:	Evidence - Admissibility - Relevance - Probative value - Rule against hearsay - Finality rule.
Bannon v. The Queen (1995) 185 CLR 1; Palmer v. R. (1998) 151 ALR 16.

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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

RULING 4

HIS HONOUR:

The accused has pleaded not guilty to two charges of murder and one of theft. The prosecution case is that the accused killed Paul and Carmel Higgins. The two deceased were the parents of the accused’s girlfriend Amanda Higgins. Part of the defence case has been that the accused was merely an accessory after the fact to murder. It has been put, including directly to Amanda Higgins, that she killed her parents. It has been put that she then pressed the accused to assist her to cover up the murders by burying the bodies.
On 22 June 1998, immediately after the close of the prosecution case, Mr Morgan- Payler sought a ruling from me. The ruling was as to the admissibility of evidence that the defence had indicated a desire to lead. The defence proposed to call three witnesses. The proposed witnesses were: Bianca Nicole Ram, Kylie Ann Buck and Paul Anthony Mitchell. Detective Sergeant Solomon from the Homicide Squad had gone to Queensland in February 1998, and there obtained statements from the three.
On 3 June 1998, Mr Morgan-Payler had given me a copy of statements signed by the three proposed witnesses. He said that the prosecution had reviewed the statements and concluded that it would not call the witnesses. One reason for that conclusion was that the statements contained no admissible or relevant material. Another was that none of the witnesses were of “truthful reliability”. He informed me that copies of the statements had been provided to counsel for the defence, who had further been told that the prosecution would make the witnesses available if required.
On 22 June, I heard submissions from Mr Morgan-Payler and Mr Langslow. In the course of Mr Langslow’s submissions, I expressed certain concerns. One concern was as to the character of those aspects of his cross-examination of Amanda Higgins as to which the proposed witnesses might be expected to give evidence. That discussion led to Mr Langslow applying to recall Amanda Higgins so that she might be cross-examined further. After further discussion, I ruled that I would not exercise my discretion to permit Amanda Higgins to be recalled. I ruled further that there was no adequate basis for calling the three proposed witnesses. I said then that I would provide my reasons later. These are my reasons.
It was on 8 May 1998 that I was, and the jury were, first made aware of the three proposed witnesses. That was in the opening address of Mr Langslow. He said that the defence would call three people in Queensland who had contacted “Crime Stoppers”. He said that the defence would call them because the prosecution would not do so. He indicated that those three people had said things about Amanda Higgins: that she had been in Queensland with a friend named Fred de Koning; that she had been shooting up in the bathroom of a flat in Caloundra; that she had been present when Fred de Koning had said that she had found her parents’ bodies on the floor with their wounds on them. Mr Langslow went on to say that that story was quite different from Amanda Higgins’ story, which was that she had broken into her parents’ house only after they were in the ground.
It was on Friday 5 June that the jury next heard reference made to the three proposed witnesses. Mr Langslow was cross-examining Amanda Higgins. He questioned her on the subject of her time in Queensland with Fred de Koning. She agreed that she had then met a man and two women. She said that she had recently learned that the three had made statements to the police. What she said further included that: she believed that Mr Solomon had rung her to ask her if she had met them; she could not recall if the statements had been read to her; she had been given at least a summary of what was said in the statements; what was there was trash; she had not compared stories and looked for mistakes; she could recollect being told that they said that she had a lot of money with her at the time; that was not correct; she had at that time some money left over from the loan on the car; she injected herself with heroin while she was with the three people; she thought she did so not in the bathroom but in the lounge room; Fred de Koning would have mentioned her parents’ death. She denied that Fred de Koning said in her presence that she had come into the house and that there was blood everywhere.
On Wednesday 10 June 1998, a further reference was made before the jury to the three proposed witnesses. Mr Langslow was still cross-examining Amanda Higgins. He again put, and she again denied, that she had a lot of money when she was in Queensland with Fred de Koning. She denied that she got any money from her parents’ home. She said that what money she had was from three sources. One was what was left from the loan. Another was what John Mitchell gave her. Another was what she and Fred de Koning got from Social Security.
On Thursday 11 June, Mr Langslow, still cross-examining Amanda Higgins, asked her whether she had told Fred de Koning that she had seen blood everywhere. She denied that she had.
I turn to the statements obtained from the three proposed witnesses. The statements purport to have been signed at Caloundra in the presence of D/S Solomon. The dates were 23 February 1998 for Bianca Ram and 24 February 1998 for Kylie Buck and Paul Mitchell. Kylie Buck was uncertain as to the dates when she saw and spoke with Amanda Higgins and Fred de Koning. Bianca Ram and Paul Mitchell were specific that they spent time with Amanda Higgins and Fred de Koning between 7 and 10 July 1995. Bianca Ram made no mention of Kylie Buck being present when she and Paul Mitchell were with Amanda Higgins and Fred de Koning. Paul Mitchell referred to Kylie Buck being present, but only on 10 July 1995.
I would single out two particular areas in the statements. The first of the two areas is as to what the three proposed witnesses said about their seeing Amanda Higgins with money. All three referred to the money which Amanda Higgins was seen to have with her. First, Bianca Ram said that Amanda Higgins seemed to have hundreds of dollars on her. Next, Paul Mitchell said he saw a bundle of cash on Amanda Higgins which he estimated to be 3 or 4 thousand dollars. Finally, Kylie Buck said that Amanda Higgins’ purse contained a few hundred dollar notes. Establishing that Amanda Higgins at a particular time had a lot of money could be seen to have a potential value to the defence of the accused in two ways. It was a potential means of undermining the credit of Amanda Higgins, if she claimed that she did not at that time have a lot of money. It was also a potential means of enhancing the defence claim as to Amanda Higgins’ state of mind. If she had a lot of money, depending upon other circumstances, it might be more readily inferred that she had a motive in killing her parents in that she wanted to get hold of their money to finance her need for drugs.
The second of the two areas is as to what the three proposed witnesses said was said about Amanda Higgins finding the bodies of her parents. All three referred to some form of discussion as to that matter. First, Bianca Ram said that she could not remember Amanda Higgins saying anything on the subject. Bianca Ram said that Fred de Koning had spoken on the subject, but only when Amanda Higgins was not present. Bianca Ram said that Fred de Koning had said that Amanda Higgins had gone home and found her parents with their throats cut. Next, Paul Mitchell said that Amanda Higgins was present, but in a daze, when Fred de Koning had talked to him and Bianca Ram. Paul Mitchell said that Fred de Koning had said that Amanda Higgins had walked in and found her father dead in the back bedroom and her mother dead in the hallway. Finally, Kylie Buck said that she and Bianca Ram and Paul Mitchell were all present when Amanda Higgins started talking about the murders. Kylie Buck said that Amanda Higgins had said that she walked in and found her parents dead, that the throat of both had been cut from ear to ear, and that there was blood everywhere.
Apart from the two areas which I have singled out, there are other matters with which the statements deal. I do not propose to detail them. There are numerous discrepancies as between the three possible witnesses about those other matters. Some discrepancies would create a potential cause for querying reliability. I do not find others in the least surprising. After all, a substantial period of time elapsed between the happening of the events and the making of the statements. In any event, my concern is not with the assessment of reliability.
The submissions put to me by counsel warranted my reviewing various principles and statutory provisions governing the reception of evidence. Mr Morgan-Payler argued that the only evidence which the three proposed witnesses could give would be inadmissible because it was irrelevant and because it would offend against one or both of the rule against hearsay and the finality rule against introducing evidence to challenge answers of a witness as to credit. Mr Langslow argued to the contrary and that the evidence was properly led pursuant to the rules governing the introduction of evidence of prior inconsistent statements.
As to what the three proposed witnesses could say about their seeing Amanda Higgins with money, there is no hearsay issue. However, as noted above, the evidence was a potential means of undermining the credit of Amanda Higgins and of enhancing the defence claim that she had killed her parents to get money for drugs.
As to what the three proposed witnesses could say as to what they heard Amanda Higgins say, or what they heard Fred de Koning say in the presence of Amanda Higgins and without objection, about her finding the bodies of her parents, that is clearly hearsay. It would be inadmissible unless admissible pursuant to an exception to the rule against hearsay. As to the principles governing the introduction of hearsay evidence, I was taken by Mr Morgan-Payler to Bannon v The Queen (1995) 185 CLR 1. In Bannon, the Court was pressed to accept that there was or should be an exception to the rule against hearsay to let in at a criminal trial hearsay statements which were exculpatory of the accused. It declined to do so. Dawson, Toohey and Gummow JJ said at page 22:
“Out of court statements are not evidence of the truth of what is said unless the statement falls within an exception to the rule against hearsay. One such exception admits evidence of a confessional nature against the maker. ... As the law stands in this country, there is no exception to the hearsay rule which renders admissible either against or in favour of an accused hearsay evidence of a confession by a co-accused or by a third party.”
In discussion with counsel, I queried whether I should treat that as a summary of the law that I was bound to apply. Mr Langslow submitted that the reference to a third party should not be treated as encompassing a Crown witness. I would now answer that question as follows. What Amanda Higgins is said to have said does not amount to a confession by her of killing her parents. The same applies to what she is said to have heard said by Fred de Koning without objection. Further, what she is said to have said, or to have heard said without objection, is not exculpatory of the accused. It might be viewed as neither exculpatory nor inculpatory. It might be viewed as inculpatory when taken with other evidence. Its potential value to the defence of the accused could only be seen to come about in one way. It was a potential means of undermining the credit of Amanda Higgins. The evidence is not admissible pursuant to an exception to the rule against hearsay. That does not mean that it might not be admissible on some other basis.
I turn next to the principles governing cross-examination as to credit and the leading of rebutting evidence as to credit. The applicable “finality” rule was the subject of close analysis by McHugh J in Palmer v R (1998) 151 ALR 16 at pages 33 and following. From that analysis, I would extract the following parts:
“...the well established finality rule would apply. That rule stipulates that answers given by a party or witness in cross-examination regarding collateral facts such as credit must be regarded as final. ... The line between evidence relevant to credit and evidence relevant to a fact-in-issue is often indistinct and unhelpful. ... the evidentiary rules based on the distinction between issues of credit and facts-in- issue should not be regarded as hard and fast rules of law but should instead be seen “as a well-established guide to the exercise of judicial regulation of the litigation process”. ... No doubt considerations of case management require that not all evidence going to the credibility of a witness should be admissible. Much of it, while relevant to the issues in a logical sense, has so little probative value with respect to those issues that it is impracticable to admit it. For reasons of convenience, it is necessary to maintain the rule that independent evidence rebutting the witness’ denials on matters going to credibility is not ordinarily admissible. In this, as in other areas of the law of evidence, a distinction exists between what is relevant and what is admissible. In general, evidence of a relevant fact is excluded only when it infringes some policy of the law, one of which (even in civil cases) is that evidence of a relevant fact is not admissible if the probative value of that fact is so low that it cannot justify the time, convenience and cost of litigating its proof. If evidence going to credibility has real probative value with respect to the facts-in-issue, however, it ought not to be excluded unless the time, convenience and cost of litigating the issue that it raises is disproportionate to the light that it throws on the facts-in-issue.”
I turn to what the three possible witnesses can say as to the holding of money. It is my assessment that what they can say is not relevant to the facts in issue. It is only in July 1995 that the three are able to speak as to what money was then held by Amanda Higgins. That is nearly two and a half months after the deaths of the deceased. I find that that is just too remote in time to be relevant. I use relevant in the “Stephen” sense, as noted by McHugh J in footnote 36 on page 33. Although my finding as to relevance makes it unnecessary to go further, I also find that the credibility of Amanda Higgins would not be seriously impaired if what the three possible witnesses could say as to the holding of money were accepted.
I turn to what the three possible witnesses can say as to what they heard said as to the finding of the bodies of the two deceased. I note again that what they can say is hearsay, and not ordinarily admissible. Any evidence as to what was seen when the bodies of the deceased were found could hardly be excluded as irrelevant. However, the relevance would be tenuous in the light of the highly probative evidence as to the finding of the bodies by the police. Subject to a reservation as to precision to which I will return, what the proposed witnesses can say does rebut certain denials of Amanda Higgins. What the witnesses can say may bear on her credibility. As such it would not ordinarily be admissible, unless it had real probative value with respect to the facts-in-issue. It is my assessment that what they can say has very little probative value with respect to the facts in issue. It is also my assessment that the credibility of Amanda Higgins would not be seriously impaired if what one or more of the three possible witnesses could say as to the finding of the bodies were accepted. For these reasons what the three proposed witnesses can say ought not to be admitted into evidence.
The assessments which I have made as to relevance make it unnecessary to do either of two things. One is to examine in depth the position as to the application of the law as to prior inconsistent statements. The other is to justify in depth my exercising my discretion to decline to permit Mr Langslow to further cross-examine Amanda Higgins. However, I will finish with some comments concerning both of those matters, and my reservation as to precision, and my having raised with Mr Langslow my concern as to his earlier cross-examination of Amanda Higgins. Section 35 of the Evidence Act sets out the procedure that ought to be followed when a witness is cross-examined as to a statement said to be inconsistent with his or her present testimony. The section contemplates that the prior statement will be put to the witness to see if the witness does not distinctly admit making the statement. If that occurs, proof may be given that the witness did in fact make it. I treat the inclusion of “distinctly” as qualifying “admit”, rather than as amplifying the precision required as to the particulars of the statement. However, there is a requirement of particularity in designating the occasion. There was a reasonably high level of precision attaching to the questions put by Mr Langslow to Amanda Higgins as to the holding of money. There was a low level of precision, indeed a vagueness, attaching to the questions as to the finding of the bodies. What was said in the opening address as to what the witnesses could say as to the finding of the bodies was also vague. The more precise the questions are, the less scope there is for misunderstanding and unfairness and other vices. I have inferred that the vagueness stemmed, not from any deficiency on the part of counsel, but from the discrepancies in what the three possible witnesses could say as to what they could recall that they heard said as to the finding of the bodies. It is not necessary to articulate a more detailed comparative review of what was in the statements, what was in the opening address and what was in the questions, than that which I have given above. I note that my own review has served only to confirm my assessment that an earlier attempt to be more precise would have run the risk of being counter- productive. I would make a like assessment as to any further attempt consequent upon the granting of leave to further cross-examine. The underlying reason is, in my view, that, as I have found, the matters were essentially of little probative value.

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[1998] VSC 16

6 August 1998