R v Mujueivc, Saliba, Rymer, Cusens

[2017] NSWDC 213

District Court

New South Wales

Medium Neutral Citation:	R v MUJUEIVC, SALIBA, RYMER, CUSENS [2017] NSWDC 213
Date of orders:	05 April 2017
Decision date:	05 April 2017
Jurisdiction:	Criminal
Before:	Judge S Norrish QC
Decision:	Cross examination on credibility not permitted
Catchwords:	Criminal - evidence - credibility rule
Legislation Cited:	Evidence Act 1995 - ss 102, 103
Texts Cited:	Odgers - Uniform Evidence Law (11th Edition)
Category:	Principal judgment
Parties:	Regina Eldin Mujuevic Jamie Saliba Chris Michael Rymer Troy Cusens
Representation:	Counsel: Mr Kimbell - Crown Mr Steel - J Saliba Ms Carroll - C Rymer Mr Pontello - T Cusens Mr Pickin - E Mujuevic
File Number(s):	2014/00347047; 2014/00347931; 2014/00347405; 2014/00347675

Judgment

Application by Accused Mujuevic to cross-examine Rishaad Christian in respect of matters described as outstanding charges; see transcript p 830

1. HIS HONOUR: This is a judgment in relation to the application to cross examine Mr Christian in respect of matters that were described as outstanding charges for which he is currently in custody. I made short rulings on the issues on Monday morning, 3 April 2017.

2. Counsel for Mr Mujuevic sought to cross examine Mr Christian, a person I will describe as the principal Crown witness, in relation to matters for which he was charged, at least by the end of February 2007, being allegations of offences respectively committed on 25 November 2016, particularly in respect of ‘using a false document to influence the exercise of public duty’, the 6th and 13 February 2017, in relation to allegations of ‘demand property with menaces with intent to steal’, as it is shortly described, and finally, in respect of an offence of ‘goods in custody being reasonably suspected of being unlawfully obtained’ committed on 27 February 2017. It is in respect of that constellation of allegations that Mr Christian was, as I understand it, in custody when he gave evidence in this trial.

3. It is submitted on behalf of Mr Mujuevic that each of the matters in respect of which the application was made were relevant matters to cross examine Mr Mujuevic to assess his credibility for the purposes of the fact finding task presented to the jury.

4. Mr Christian is the primary witness and complainant in respect of count 1 in the document. Count 2 in the indictment, as I understand the Crown case although it has not been greatly particularised, is tied up with the allegation in count 1, that is of wounding with intent to grievous bodily harm. Count 2 is an allegation of the four accused “participating in a criminal group”. The allegation in relation to each of the accused in respect of count 1 concerns the alleged existence of a joint criminal enterprise to wound, with intent to grievous bodily harm to, Mr Christian.

5. Although it is a matter entirely for the jury, of course, there appears to be of no doubt that at some time around about 8.22am on 7 July 2014, or thereabouts, Mr Christian, after arriving at the Mount Druitt Chapter clubhouse of the Rebels Motorcycle Club in Minchinbury, either inside the club, near the club or outside the clubhouse, was shot at least three times by a small calibre firearm, and was subsequently beaten around the head and body by a blunt object before collapsing in Grex Avenue, the street that is connected to the industrial estate where the Rebels clubhouse is located.

6. The Crown case to implicate Mr Mujuevic is somewhat circumstantial in some respects, although there is direct evidence by Mr Christian of Mr Mujuevic driving him to the clubhouse for a meeting. There is evidence from Mr Christian that Mr Mujuevic opened up the clubhouse to enable Mr Christian to enter, and that at the time that he realised he was being shot, Mr Christian claims that Mr Mujuevic was standing in front of him, so to speak, but on the opposite side of a pool table located within the premises.

7. Although there may be some dispute as to where Mr Christian was shot, and perhaps whether Mr Mujuevic was inside the building at the time of the shooting, the Crown case is not that Mr Mujuevic was one of the persons who inflicted grievous bodily harm upon Mr Christian. The evidence of Mr Christian that may implicate Mr Mujuevic, but equally could be entirely inconsistent with his guilt, is the claim by Mr Christian that Mr Mujuevic had told him before coming to the clubhouse that he, Mr Christian, should not be "tooled up" or "armed".

8. The evidence of critical importance in implicating Mr Mujuevic and the other accused, given the circumstantial evidence of association in various ways, is the evidence of purported voice recognition by Mr Christian of Mr Saliba and Mr Rymer. This is the foundation upon which the Crown case rests. The various building blocks that it seeks to identify, or strands in the case, very much turn upon established beyond reasonable doubt the truthfulness of Mr Christian's evidence in respect of that particular voice recognition.

9. The matters upon which counsel for the accused, Mr Mujuevic, wishes to cross examine relate to, as I said, alleged offences committed by Mr Christian on the dates that I earlier indicated. In respect of those various allegations, I have two sets of facts sheets, as they are described, that are exhibit 19 on the voir dire.

10. The first matter in time, the offence committed on 25 November 2016, in essence relates to a false medical certificate forwarded, it is said, by Mr Christian to Mount Druitt Local Court to avoid having to appear at court on that date. The medical certificate was not accepted by the Court. He was convicted in his absence of various tax offences, as I understand it, and was fined a total of $38,000. A matter never, as I understand it, drawn to the attention of the jury in the wake of the ruling I made that that particular alleged offence could be the subject of cross examination of Mr Christian.

11. The two charges of demanding money with menaces, firstly committed on 6 February 2017, and then approximately a week later; that is, on 13 February 2017, relate to confrontations, one personal and one over the telephone, allegedly by the accused against or towards a person who is described as the “husband” of a "Filipino married couple", whose names have not found their way into the facts provided to me.

12. In essence the first event in time involved the accused going around to the premises of the alleged victim, calling out to the alleged victim and claiming that the victim owed money. There seems to be no doubt that there is a description in the facts of a person very similar to Mr Christian. A depend was made for $5,000. When the unidentified victim did not comply with the request and refused to come out of the premises, it is alleged that Mr Christian ripped off the security door.

13. The second allegation in time turns upon the claimed phone call made in the early afternoon to the male victim. Again, the demand for $5,000 was met with various threats made to the male victim by the person on the phone, including a threat to kidnap the son of the victim. The number of the male person calling was displayed on the victim's phone.

14. The fourth charge in time, the goods in custody charge, relates to the accused's possession of $3,200 at the time of his arrest. That cash is said to be reasonably suspected of being unlawfully obtained.

15. Mr Christian gave evidence in relation to each of the matters, the subject of the charges, under the protection of a certificate pursuant to s 128 Evidence Act 1995. In relation to the first matter in time, he effectively admitted that he sent a false medical certificate, although he denied certain particulars that were put to him, and in respect of that matter it was quite clear, both by the character of the allegation and the evidence that he gave, none of which was ultimately brought to his attention before the jury, raised issues that directly went to his credibility in the manner as it was submitted by counsel for Mr Mujuevic.

16. In relation to the two counts of demand property with menaces, however, whilst it would seem that Mr Christian in his evidence on the voir dire admitted the first event, in essence, of the “demand” for the money, he claimed, to my mind, not necessarily inconsistent with the facts prepared by the police, that it related not to an intention to "steal" money from the victim but was concerned with his role to enforce what he understood to be a debt owed by the victim to a third party. Mr Christian denied ringing the victim on 13 February 2017. In relation to the fourth offence in time, with which he is charged, he admitted the cash to be in his possession but gave two conflicting explanations for that possession.

17. Ultimately, the core of the submission made on behalf of Mr Mujuevic was that each of the offences had elements of “dishonesty” in their character. The first offence in time being particularly directed at dishonesty in dealing with court proceedings, as is very much reflected in the character of the charge.

18. I point out in relation to the second and third offences in time, the demand money with menaces offences, they strongly carry elements of intimidation and violence or threats of violence. But Mr Christian has an extensive criminal history with many convictions for violence and none of the counsel have sought directly to cross examine him on his criminal convictions and suggest to him that his violent proclivities reflected in his criminal history were relevant to the assessment of his credibility in relation to the matters with which the jury was concerned.

19. Section 102 Evidence Act states that “credibility evidence” about a witness is not admissible. Section 103, the relevant section, however, says that this rule "does not apply to evidence adduced in cross examination of a witness if the evidence could substantially affect the assessment of the credibility of the witness."

20. Subsection (2) refers to matters which the Court must have regard to for the purposes of subs (1). But it is not an exclusive statement of relevant circumstances in which the issue of invoking s 103(1) of the Act may arise.

21. By reference to the learned text by Mr Odgers SC, in the 11th edition, which is my latest edition of his text, at pp 570 to 571, he gives examples of where the satisfaction or not, as the case may be, of the test of "substantially affect the assessment of the credibility of the witness" may arise. He points out that matters that relate to "general honesty of the witness", apart from a particular dishonesty or particular matters in specific detail may "require careful analysis". In other words he suggests that “general honesty” issues may not be sufficient to satisfy what is now the amended test required under s 103(1).

22. The matters that the jury will be required to consider in assessing the specific credibility of the witness, so far as it implicates Mr Mujuevic, relate to the circumstances of their contact before Mr Christian was driven to the clubhouse on the evening of 7 July, whether, in fact, Mr Mujuevic drove him that is, Mr Christian to the club, whether Mr Mujuevic ever told Mr Christian not to be armed, whether Mr Mujuevic led him into the clubhouse in the manner in which Mr Christian describes, whether any injuries were sustained by Mr Christian within the clubhouse or outside the clubhouse, whether Mr Mujuevic was in the position Mr Christian claims he was at the time of his wounding, and, of course, critically in the context of a joint criminal enterprise case, whether his identification of the voices of Mr Saliba and Mr Rymer is truthful. Thus, the credibility of Mr Christian is an important matter in this case.

23. As I have earlier indicated before this judgment, I had no trouble determining that Mr Christian could be cross examined about the circumstances of the first offence in time ( and that included cross examining him, if needs be, about the answers he gave on the voir dire) and that the last offence in time, the goods in custody offence, as they relevantly raise matters of particular "honesty", or "dishonesty", including the prevaricating answers he gave, or conflicting answers he gave, on the voir dire. Although that latter aspect of the matter was not pursued.

24. However, I concluded that the two “demand money with menaces” matters did not, in my view, raise matters that could "substantially affect the assessment of the credibility of the witness "in the way in which it would be required in this case. I took into account the character of the Crown case as it is summarised in the facts sheet, and particularly the evidence of Mr Christian. In my view, the matters about which Mr Christian admits his involvement, firstly in relation to the first demand money with menaces matter, suggests no element of "dishonesty", or attempt to obtain property over which Mr Christian might not raise a claim of right or an indirect claim of right. His account is he was not seeking to obtain money that he believed he was not entitled to “demand”. His account is he was endeavouring to obtain money that he believed he was entitled to claim on behalf of a third party.

25. In relation to this situation, in the face of Mr Christian's evidence, it was suggested by Mr Pickin on behalf of Mr Mujuevic, notwithstanding Mr Christian's evidence, that it may be the case that the defence may lead evidence, or seek the Crown to lead evidence, from the various dramatis personae that would be relied upon to establish the guilt of the accused in respect of the “demand property with menaces” matters. That may be so. It may, of course, present various complications and very unsatisfactory circumstances in which the jury might consider the issue. But, ultimately, such evidence as might be imagined to be available in relation to the matter by reference to the ‘facts statement’ would have great difficulty to my mind, even establishing that Mr Christian rang the victim on 13 February, going behind the claimed motivation or intention of Mr Christian. Very much at the heart of whether, in fact, his conduct, as alleged in the facts sheet involved elements of specific dishonesty on his part.

26. The issue of his penchant for violence, on my view, both in the evidence he gave before the jury and in the criminal history about which he was never subsequently asked a single question, is clear. But simply establishing by reference to matters not proven against him that he had a penchant for violence or a capacity for violence as I earlier said was a matter that would be clearly established from matters that are proven against him and about which he could not credibly quibble.

27. The situation ultimately boiled down in relation to those matters, particularly in the context of what I would anticipate Mr Christian's evidence to be, one where the evidence that would be adduced from “cross examination” at its highest, even allowing for any opportunity to call other evidence that might seek to contradict his account, could not “substantially” affect the assessment of the credibility of the witness in respect of the matters that are at the heart of this trial. Thus in my view, in respect of those matters, there was not a basis for permitting the cross examination in accordance with the terms of s 103.

28. If I was in error in relation to that matter, and I naturally at this point cannot see that I am in error if I may be a judge in my own cause, I would not have permitted the cross examination in any event, pursuant to s 135 of the Act. Simply because to permit cross examination on that matter would require, as a matter of either fairness to the issues raised by counsel for Mr Mujuevic or to Mr Christian, the calling of other evidence about which, of course, Mr Christian could not comment and would be unable to hear. This would, in the view of the Court, lead to undue time being taken up trying to resolve an issue that, in practical terms, is incapable of being resolved in a meaningful way when it does not involve any meaningful participation by interests acting on behalf of Mr Christian. But, as I said, the primary matter that requires me to conclude that counsel for the accused could not cross examine Mr Christian about those demand money with menaces matters is the failure to satisfy me that any “evidence” cross examination on those matters would "substantially affect the assessment of his credibility."

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Decision last updated: 15 August 2017