R v Saurav Wagle (No 1)
[2014] ACTSC 159
•14 April 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Saurav Wagle (No 1) |
Citation: | [2014] ACTSC 159 |
Hearing Date(s): | 11 April 2014 |
DecisionDate: | 14 April 2014 |
Before: | Refshauge J |
Decision: | The application for a complaint direction to be given to the jury be dismissed. |
Category: | Principal Judgment |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Juries – Directions – Complaint direction – Application dismissed |
Legislation Cited: | Crimes Act 1900 (ACT), ss 24, 30 |
Cases Cited: | Alford and Magee (1952) 85 CLR 437 |
Texts Cited: | Hawkins’ Pleas of the Crown (1973 (Reprint), Professional Books Ltd, London) New South Wales Trial Bench Book (2007, Judicial Commission of New South Wales: Sydney) |
Parties: | The Queen (Crown) Saurav Wagle (Defendant) |
Representation: | Counsel Ms M Moss (Applicant) Mr R Davies (Respondent) |
| Solicitors ACT Director of Public Prosecutions (Applicant) Legal Aid (ACT) (Respondent) | |
File Number(s): | SCC 135 of 2013 |
Refshauge J:
An altercation between two brothers, Saurav Wagle and Samyam Wagle, in their home at Pearce, ACT, on 28 April 2013 led to Saurav Wagle, the accused, being charged with various offences of personal violence.
At the commencement of the trial on 9 April 2014, a fresh indictment was presented containing two counts. They were an offence of assault occasioning actual bodily harm, contrary to s 24 of the Crimes Act 1900 (ACT), and an offence of making a threat to kill, contrary to s 30 of the Crimes Act.
The evidence
Since the trial has not been completed, it is only appropriate to sketch out in broad outline the evidence without, of course, making any findings about it.
There seems no dispute that the accused asked another resident of the subject premises for some money. This angered the accused’s brother, the complainant, who remonstrated with the accused. That led to a fight between the accused and the complainant. The precise circumstances of the fight were very much in issue in the trial. The complainant stated that when he went to remonstrate with the accused, the accused produced a knife and made the threat, the subject of one of the counts on the indictment.
He further stated that, after some pushing by both parties, the two ended up in the accused’s bedroom on the floor at the end of the mattress on which the accused slept. The complainant was on top of the accused and the accused then proceeded to stab the complainant with a knife, causing a number of stab wounds and other injuries. The accused said that the complainant approached him rather aggressively, punching him. He denied he had a knife. He agreed, however, that the two ended up on the floor in his bedroom with the complainant on top of the accused, punching the accused, he said.
The accused said he sought to defend himself and noticed a knife, a paring knife, that he had previously purchased to cut fruit, which was on an adjacent desk or similar piece of furniture. He reached out and grabbed it, proceeding to stab the complainant, but not severely. As can be seen, both accounts are consistent in that the accused stabbed the complainant, but each say it happened in different circumstances. Both the parties also agreed that the accused had been drinking that day and was intoxicated. Both agreed that the complainant managed to take the knife off the accused and, in the course of doing so, the precise circumstances of which were in issue, a number of injuries were inflicted on the accused.
The police and ambulance service were contacted and both attended soon after the altercation. The ambulance officers attended to the injuries suffered by the complainant. As is to be expected, the various officers took brief histories from the complainant in order to attend to their duties. Some of the police and ambulance officers were called and, in the course of giving their evidence, recounted the history given to them by the complainant. Notwithstanding the hearsay nature of the evidence, it was not subject to any objection by counsel for the accused, no doubt because of the likelihood, if not perceived inevitability, that it would be admitted under s 66 of the Evidence Act 2011 (ACT), since the complainant had, by the time these witnesses gave their evidence, been called to give evidence.
The issue
In preparation for the summing up to the jury, I sought from counsel submissions on any special directions that they wished me to give to the jury. Counsel for the Crown sought what she described as a “complaint direction” in relation to the evidence given by the police and ambulance officers. Counsel for the accused opposed the giving of such a direction. The standard direction as to complaint taken from the New South Wales Trial Bench Book (2007, Judicial Commission of New South Wales: Sydney) looseleaf, Service 36, June 2012, p 26607 is attached as Appendix 1 to these reasons.
The relevant material
The evidence the subject of the direction was given by the following persons:
(1) Constable Denman, who was one of the police officers who attended at the Pearce home after the call to police operations. Shortly after his arrival, he sat the complainant down and had a conversation with him about what happened. Later, he more formally interviewed the complainant and a statement was taken at The Canberra Hospital, which was recorded electronically.
(2) Senior Constable Louise Hawke, who was acting sergeant on 28 April 2013, attended at the Pearce house after other police had arrived, but before the complainant was taken to The Canberra Hospital. She had a short conversation with the complainant, “to ascertain or to confirm what had been reported”.
(3) Intensive Care Paramedic Susanne Jahnel, who was one of the ambulance officers who attended at the Pearce home as a result of the emergency calls. She attended to the complainant, taking a short history of the incident from him.
(4) Graduate Paramedic Intern, Nicole Smith, who also attended with Intensive Care Paramedic Susanne Jahnel, and the complainant also described the incident to her.
(5) Dr Amanda Van Diemen, who was employed by City Health at Clinical Forensics ACT, and who attended at Woden Police Station to examine the accused and, for the purposes of her physical examination, took a history from the accused.
The details of the statements made, extracted from the transcript of the proceedings, are set out in a document helpfully provided by the Crown, a copy of which is attached as Appendix 2 to these reasons.
The law
The obligation of a judge in summing up a case for the jury was set out as long ago by Sir William Blackstone in his Commentaries on the Laws of England (1768, Clarendon Press: Oxford). Though referring to a civil trial, the following statement, at Book 3, p 375, is apposite:
When the evidence is gone through on both sides the judge, in the presence of the parties with counsel and all others, sums up the whole to the jury, omitting all superfluous circumstances, observing where the main question and principal issue lies, stating what evidence had been given to support it, with such remarks as he thinks necessary for their direction, and giving them his opinions on matters of law arising upon that evidence.
This statement was cited by Windeyer J with approval in Jones v Dunkel (1959) 101 CLR 298 at 314.
The overriding consideration, however, is that the questions of law must be those that arise in the trial; for example, Nagle CJ at CL, with whom Street CJ agreed, said in Petroff v The Queen (1980) 2 A Crim R 101 at 108:
The court has pointed our repeatedly that the conduct of a trial, the ruling of a trial judge and his directions to a jury must be understood in the light of the conduct of that trial.
See also McNeilly v The Queen (1981) 4 A Crim R 46 at 48 per Street CJ and Alford and Magee (1952) 85 CLR 437 at 466.
There is no doubt that the jury need only be directed as to so much of the law as is needed to determine the charges before it: Huynh v The Queen (2013) 295 ALR 624 at 632; [31].
In this case, the circumstances of the altercation, and, in particular, which of the accused and the complainant initiated the fighting and how they did so, is a critical issue. In that context, it is said that the complaint evidence is of significance because it has the capacity to provide additional evidence as to the truth of the allegations made by the complainant. There is no doubt that evidence of out-of-court statements, which are admitted under s 66 of the Evidence Act, can be used as evidence of the truth of what was said, as stated by the Hunt CJ at CL in H v The Queen (1997) 92 A Crim R 168 at 172. See also Papakomas v The Queen (1999) 196 CLR 297 at 309-10; [32]-[40].
This is not limited to what has been traditionally known as “complaint evidence”. Since Hawkins’ Pleas of the Crown (1973 (Reprint), Professional Books Ltd, London), it has been the case that special significance is placed on the complaint made by a woman who alleges that she has been sexually assaulted. The history is helpfully traced in R v Lillyman [1896] 2 QB 167 at 170-1. As King CJ stated in R v Gallagher (1986) 41 SASR 73 at 77, there was, however, a need for spontaneity in the making of such a complaint, though such complaint could be admissible, as in Chesney v Newsholme [1908] P 301, if made in answer to a question, in that case by a child complainant to his mother.
Weinberg JA, however, with whom Nettle JA and Mandie AJA agreed, stated in R v EF (2008) 189 A Crim R 463 at 471; [47]-[50]:
A complaint will not be admissible if, effectively, it has been put into the mouth of a complainant by a question of questions or a suggestive or leading nature. The complaint must be made freely and voluntarily [R v Adams [1965] Qd R 255].
The test that, as stated in Freeman [[1980] VR 1], is:
What likelihood there was that the “complaint” was not the spontaneous and unvarnished narrative of the prosecutrix, either because the statement had been put in the prosecutrix’s mind and mouth by questions of such a character as to have suggested to the prosecutrix the answers she in fact gave, or that the questioner desired the answer given rather than another, or that the circumstances indicated that the answer given was the product of a suggestive question to a suggestible mind.
In the earlier case of R v Northcott [[1917] 1 KB 347 at 350], Viscount Reading CJ said:
The court is concerned that in the present case the statement made by the girl was spontaneous in the sense that it was her unassisted and unvarnished statement of what happened, that she may have been persuaded to tell her unassisted and unvarnished story is no reason why the evidence of her having made the statement should be rejected.
In De B v De B [[1950] VLR 242] it was held that:
Even if it could be said that a complainant was persuaded to tell someone what had happened, so long as the complainant did not do so in response to questions of a leading or suggestive nature, the answers to those questions would be admissible.
While this is no longer the test of the admissibility under s 66(2) of the Evidence Act of out-of-court statements in which a complaint in respect of any offence, not just sexual offences, is made, there is some trace of that approach in the section’s requirement that “[t]he occurrence of the asserted fact must be fresh in the memory of the person who made the representation”. Thus, there may be matters to which an appropriate direction may need to be addressed, if relevant, as to the circumstances under which the complainant was made and how the jury may view it, those matters including some of the ones referred by Weinberg JA in R v EF.
The range of evidence now admissible under s 66 of the Evidence Act, however, is very wide and includes evidence given to what may be regarded as professional investigators, such as police officers and ambulance officers, who may probe for information in ways that would have made complaint evidence inadmissible at common law. This may need to be drawn to the attention of the jury in appropriate circumstances.
The standard direction to which I have earlier referred suggests that this test of admissibility means that “[b]ecause of the circumstances in which the complaint was made, a jury is entitled to use what was said in the complaint as evidence of what the complainant alleged against the person”. It may need to be crafted to deal with such situations as I have referred to a little more carefully.
In Director of Public Prosecutions v Walker [2011] ACTCA 1 at [66], the Court of Appeal held that, where complaint evidence was adduced and admitted under s 66(2) of the Evidence Act, a trial judge was required
[e]ither to limit the use of the complaint evidence under s 136 or to direct the jury that they can use the evidence as evidence of the truth of what the complainant had said to the witnesses, who recounted his complaints in the witness box, that is as evidence the accused had assaulted the complainant in the way he alleged.
While a statement of general principle by which I am bound, this comment must be subject to the overriding consideration of the circumstances of the trial and the issues to be decided by the jury. In the light of that, I turn to consider the specific statements in respect of which the direction is sought to be given.
The complaints
The first complaint made to Constable Denman was in fact not consistent with the evidence of the complainant orally given in the trial. That evidence was that the accused asked a housemate for money. The complainant said that, when the complainant first approached the accused in the housemate’s room, the accused produced the knife, brandishing it, and making threats to the complainant. In this “complaint”, however, the complainant says that the accused asked him, not his housemate, for money, that the accused entered the complainant’s room, not that the complainant approached the accused in their housemate’s room, and that he did not know until the argument escalated and they started fighting that the knife was produced, not that the accused produced it at the beginning and brandished it at the beginning of the fight.
It seems to me that the inconsistency between the evidence of the complaint and the evidence of the complainant about the assault means that the standard direction, even carefully crafted to fit the circumstances, as would always be required, is not appropriate, as the complaint cannot be corroborative evidence of the assault being committed in the manner alleged by the complainant.
As to the second complaint made to Constable Denman, it is clear that this was in a formal statement being made by the complainant for the purposes of being the evidence that would be able to be given by the complainant in the proceedings to be taken against the accused. It was, thus, not admissible under s 66(2), by virtue of s 66(3) of the Evidence Act. The fact that it was admitted, because no objection was made to its admission, does not render it evidence admitted under s 66(2) of the Evidence Act. In these circumstances, no direction is required.
The complaint evidence to Senior Constable Hawke and the two Paramedics, Ms Jahnel and Ms Smith, can be dealt with together. While admissible under s 66(2) of the Evidence Act and, as I understand it, not objected to by the complainant’s counsel for that reason, the content of the statements is quite limited. In effect, they state one or more of three matters: that the complainant was intoxicated; that the complainant and the accused had a fight; and that the accused stabbed the complainant in the fight.
In fact, none of these matters was in dispute in the proceedings, though the Crown did contend that the degree of the accused’s intoxication alleged by the accused was greater than it actually was. That is to say, both complainant and accused asserted those three facts, which were all that the complaints asserted. It seems to me that, in those circumstances, so far as the complaints being evidence of the truth of the allegations is concerned, there is no requirement for me to burden the jury with another direction when the subject matter of the complaints is not an issue in the proceedings. The matters of which the complaints were relevant for establishing the truth of the assertions are not ones which are in issue. Further, the complaints did not address the matters in the allegations that are in issue in the proceedings, namely, when and in what circumstances the knife was produced and in which it was used.
So far as the use of the complaints as to credibility are concerned, different issues arise. The evidence was not adduced under s 108(3) of the Evidence Act, since leave for that purpose is required and no such leave was sought or granted. Again, it seems to me that the consistency of the evidence of the complainant is not proved or enhanced by this evidence because of two matters. In the first place, the first complaint was in fact, inconsistent with the oral testimony of the complainant on important issues. Indeed, in some respects it is more consistent with the oral testimony of the accused.
Secondly, the balance of the complaint evidence is that of uncontested facts to which the accused in his first statement to police admitted. In those circumstances, it does not seem to me that it is relevant to the credibility of the complainant. Finally, the statement made to Dr Van Diemen is irrelevant for it is not a complaint made by the complainant, but a statement made by the accused. Indeed, the Crown prosecutor, very properly, did not ultimately pursue the need for a direction in respect of that complaint.
Conclusion
Accordingly, it does not seem to me that in the circumstances of this trial, having regard to the issue arising from the conduct of the trial, a direction as to the use to which the statements made by the complainant to police officers and the ambulance officers is required.
| I certify that the preceding twenty-nine [29] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge. Associate: Date: 10 November 2014 |
APPENDIX 1
The Crown relies upon what [the complainant] said to [person to whom complaint was made] about the alleged assault by [the accused] upon [him/her], as evidence that such an assault did occur. You will recall the evidence that was given about that complaint.
[Set out evidence of the complaint(s) made by the complainant and any other witness.]
It is for you to decide whether the complaint was made and what its contents were.
[If appropriate set out the defence arguments about the complaint evidence.]
If you find that the complaint was made substantially to the effect that [state nature of the complaint] then you can use evidence of what was said in the complaint as some evidence that such an assault did occur. That is, you can use it as some evidence independent of the evidence given to you of that incident by [the complainant] in the witness box. The law says that because of the circumstances in which the complaint was made, a jury is entitled to use what was said in that complaint as evidence of the truth of what [the complainant] alleged against a person. A jury is entitled to find that the complaint was made at a time and in a manner that would indicate that the allegation was reliable, that is, that the allegation is less likely to have been fabricated by [the complainant] and more likely to be accurate. [There may be other matters that can also be taken into account, such as the distressed condition of the complainant.] It is a matter for you whether you draw that conclusion in this particular case and so treat the complaint as evidence of the alleged assault by [the accused] in addition to the evidence that has been given about it in this courtroom. If you do use it as some evidence of the assault, that is the subject of the charge, then what weight you give it is again a matter for you.
Whether you do use the evidence of complaint in that way or not, the Crown asserts that it has another purpose. The Crown contends that the fact that [the complainant] raised the allegation against [the accused] at the time and in the manner that [he/she] did would lead you to accept the evidence [he/she] gave in the witness box. In other words, it makes [his/her] evidence more believable than if [he/she] had not raised the allegation as [he/she] did.
Again, it is for you to decide whether this complaint was made, but if you are satisfied that it was, then the question you should ask yourself is, did [the complainant] act in the way you would expect [him/her] to act if [he/she] had been assaulted as [he/she] said [he/she] was? Is what [he/she] did the sort of conduct you would expect of a person who has been assaulted in that way? If you think that [the complainant] has done what you would expect someone in [his/her] position to do, that may support the Crown case because you may find that there is a consistency between [the complainant’s] conduct and the allegation that [he/she] makes against [the accused].
On the other hand, if [the complainant] has not acted in the way you would have expected someone to act after being assaulted as [he/she] described, then that may indicate that the allegation is false. But bear in mind when considering this issue that there may be good reasons why [the complainant] did not raise the allegation immediately following the alleged assault and that a failure to do so does not mean that the allegation must be false.
[Refer to arguments as to whether there were or were not good reasons for the failure to raise the allegation immediately.]
Of course, the fact that a person says something on more than one occasion does not mean that what is said is necessarily true or accurate. A false or inaccurate statement does not become more reliable just because it is repeated on one or more occasion(s).
[Give a warning as to the hearsay nature of the evidence under s 165 if such a warning is requested.]
APPENDIX 2
COMPLAINT EVIDENCE
10 April 2014 - Evidence of Constable Denman (page 92-93)
“Did you have a conversation with Mr Wagle about what had happened?---I did. Can you please tell the jury what he told you?---I sat Samyam down on the sofa just nearby . and spoke to him about what occurred. He told me that he, that his brother Saurav had been drinking all day at home. Saurav started asking him for some money, which Samyam didn’t want to give him any. They then engaged in an argument and it escalated and the defendant entered his room at that time and they started having a fight. He didn’t know that the defendant had a knife, and the defendant then started stabbing him numerous times, so then he started to defend himself, words to that effect.”
10 April 2014 - Evidence of Constable Denman (page 94)
“I just want to ask you about that conversation. Did he say anything to you - you have told the jury about what he told you happened at the actual scene and he gave you a lot more details in the interview. Yes?---Yes, that’s correct. Did he tell you anything that the accused said to him about the altercation?---Yeah. I asked him a lot of questions about the incident and he did state certain things about what the accused was saying during the incident. As far as verbatim wo.rds go, I can’t really recall exactly what we were saying but I did read earlier some threats against his life and saying that he was going to kill him, and something about why is he protecting Bishnu. I was present when he was saying stuff like that.”
10 April 2014- Evidence of Constable Hawke (page 100)
“Did you see a person called Sumyam Wagle?-.--That’s correct. When I entered the premises I noticed that he was sitting on a coffee table, speaking to Constable Denman and Constable Turkich. Did you at any time have a conversation with him?---I had a brief conversation with him to ascertain or to confirm what had been reported. He informed me that his brother was intoxicated and had stabbed him. Do he say anything further about what had happened?---Not to my knowledge to me. I was - as team leader, my role was basically to turn up, ascertain what had occurred and then manage the rest of the scene, so I would have had a brief conversation with him to establish what I had previously known, and then moved on to do other things.”
10 April 2014- Evidence of Susanne Jahnel (page 103 -104)
“Did he tell you anything about what had occurred?---Yes. he said he had been in an altercation with his brother and that his brother had produced a knife and stabbed him, and that they had sort of scuffled on the floor, and he believed he had also at some point been either kicked or punched in the face, but he couldn’t quite recall the order of events.”
10 April 2014 - Evidence of Nicole Smith (page 112)
“Did the patient say anything to you about what had happened?---The patient stated that he
had had an altercation with his brother, that he believed he may have been punched and
then was stabbed by his brother.”
10 April 2014 - Evidence of Dr Van Dieman (page 129) - This is the accused’s
complaint
“What did he say?--- He said to me that the following events had happened at about
9 o’clock to approximately 10 o’clock in the evening on 28 April 2013 and that he was in a room in his house. He said that he was having a discussion with his flatmate at his house. The flatmate then went into another room and spoke to Mr Wagle’s brother and his brother came into the room and started arguing with him. His brother then produced a knife during the argument and him and his brother struggled. During the struggle he said to me that his brother had told him that he was going to ‘finish him’. Sorry, his brother said, ‘I am going to finish you,’ and then at another time his brother said to him, ‘I am going to kill you.’ He didn’t lose any consciousness during the alleged assault and that was all he told me.”
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