R v Semaan and Ors (Rulings 11 and 12)
[2016] VSC 552
•8 November 2016
| IN THE SUPREME COURT OF VICTORIA | Unrestricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2015 0127
S CR 2015 0124
S CR 2015 0125
| THE QUEEN |
| v |
| ALEXANDER SEMAAN |
| HANNA SEMAAN |
| MEGAN BELJULJI |
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JUDGE: | Beale J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 7, 18, 20–22, 25–29 July, 1–5, 10–12, 15–19, 22–25, 29, 31 August, 1-2, 5-6 September, 24, 28 October and 4 November 2016 |
DATE OF RULING: | 8 November 2016 |
CASE MAY BE CITED AS: | R v Semaan & Ors (Rulings 11 & 12) |
MEDIUM NEUTRAL CITATION: | [2016] VSC 552 |
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EVIDENCE – Unfavourable witness – Application by prosecution (P) under s 38 of the Evidence Act 2008 for leave to cross-examine its own witness, MK – No dispute that MK’s evidence unfavourable to P regarding events on 1 and 2 December 2014 – P aware that MK’s evidence was likely to be unfavourable – Application not made by P until re-examination of MK – None of the accused would have conducted their cases differently if application had been made earlier – No unfair prejudice to accused in granting application – Application granted (Ruling No 11).
EVIDENCE – Unfavourable witness – Application by P under s 38 of the Evidence Act 2008 for leave to cross-examine its own witness, YS – No dispute that evidence of YS unfavourable to P and that YS had made prior inconsistent statements in his police statement – Application made by P during evidence in chief of YS but prosecution had known for months that YS might resile from his police statement – Application opposed by second accused (D2) on basis that notice of application was not given at earliest opportunity and that she would be unfairly prejudiced – No suggestion that D2 would have conducted her case differently if notice had been given earlier – No unfair prejudice to D2 – Application granted (Ruling No 12).
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms M Williams QC Mr N Hutton | Office of Public Prosecutions |
| For the Accused A Semaan | Mr M Sharpley | Valos Black & Associates |
| For the Accused H Semaan | Mr J Kelly | Matthew White & Associates |
| For the Accused M Beljulji | Mr D Cronin | Emma Turnbull Lawyers |
HIS HONOUR:
Background
Alex Semaan (Alex) is charged with murdering Michael Bekhazi (Michael) (Charge 1). The main prosecution witness, Tony Kanaan (Tony), claims that, on the night of 1 December 2014, he witnessed Alex shoot Michael in the head at close range in the backyard of Alex’s home at 137 Donald St, Brunswick East (137). Tony made a police statement to that effect in the early hours of 2 December 2014.
Alex denies shooting Michael. He says an armed intruder, who tried to rob him in his bungalow, and who fired off two shots in the course of their struggle, must have shot Michael as he was leaving. Alex claims that Tony is a liar and a ‘junkie’ who must have been complicit in the attempted armed robbery; that is the reason, Alex asserts, for Tony falsely accusing him of shooting Michael.
Hanna Semaan (Hanna), Alex’s sister, and Megan Beljulji (Megan), Alex’s girlfriend, are each charged with two counts of attempting to pervert the course of justice (Charges 2 & 3). In relation to Charge 2, the prosecution alleges that both Hanna and Megan, believing that Alex had shot Michael, tried to get Tony to make a false statement to police exonerating Alex. In relation to Charge 3, the prosecution alleges that the crime scene was altered by persons unknown to support Alex’s armed robber story and that Hanna and Megan, knowing it had been altered, encouraged the police to re-examine the crime scene.
Ruling No 11 — Prosecution application regarding Margaret Khoury (Margaret)
Margaret is a niece of Alex and Hanna. On 1 December 2014, Margaret was living across the road from 137. At around 9.30 pm, she heard a commotion at 137 and went across the road to investigate. She entered 137 by the back gate. In the backyard, she saw one of her cousins tending to Michael, whom she soon realised had been shot in the head. Shortly after, on her account, she left the backyard and called ‘000’.
Margaret made a statement to police along these lines at around 11.30 pm on 1 December 2014. She made no mention of seeing Alex on the night of the shooting.
On 1 December 2014, sometime between 10.15 pm and 10.55 pm outside 137, Detective Dennis Cunha (Cunha) spoke to Noelle Semaan (Noelle), a sister of Alex and Hanna, and an aunt of Margaret. Cunha covertly recorded the conversation with Noelle during which she told him that she had spoken to Margaret. She said Margaret told her that she had been in the bungalow at 137 trying to get Alex’s mother to leave when Alex pointed a gun at everyone. I previously ruled that the prosecution could adduce this evidence.[1]
[1]R v Semaan & Ors (Rulings 8, 9, 10) [2016] VSC 226R.
On 2 or 3 December 2014, Tony returned to 137 to find various members of the family in the backyard, including Hanna and Margaret. According to Tony, Hanna abused him and said things to him which suggested she somehow knew the contents of his police statement in which he had described seeing Alex shoot Michael. She pressured him to go back to the police and change his statement. On 17 December 2014, Tony made a further police statement about this incident, which, for convenience’s sake, I will refer to as occurring on 2 December 2014. The police did not approach Margaret to see what she could say about events on 2 December 2014.
At the committal hearing in August 2015, Margaret swore that her police statement, which only concerned 1 December 2014, was true and correct. She was not asked about 2 December 2014.
On the morning that Margaret was to give evidence before the jury, being 29 July 2016, the prosecution ‘conferenced’ Margaret for the first time. Margaret confirmed the account she gave to police as regards 1 December 2014.
Prior to Margaret giving evidence before the jury, she gave evidence at a Basha[2] hearing requested by Hanna’s counsel. Margaret said in the Basha hearing, under cross-examination by Hanna’s counsel, that on 2 December 2014, Tony came to 137 Donald Street with his police statement and asked someone to read it to him, saying he did not understand what was in it. Margaret said someone read the statement to him — she was not sure who — and Tony was asked to leave.
[2]R v Basha (1989) 39 A Crim R 337.
In re-examination of Margaret during the Basha hearing, the prosecution sought leave under s 38 of the Evidence Act 2008 to cross-examine Margaret about 2 December 2014. There was no dispute that her evidence regarding that day was unfavourable to the prosecution,[3] but the application was opposed on the grounds of unfairness. In my view, there was no unfair prejudice to the accused or the witness and I granted the application.[4]
[3]Trial Transcript, The Queen v Semaan & Ors (Supreme Court of Victoria, Beale J, 3, 4, 11 May 7, 18, 20–22, 25–29 July, 1–5, 10–12, 15–19, 22–25, 29, 31 August, 1, 2, 5, 6 September, 24, 28 October, 4 November 2016) (‘Transcript’) 359.29–31.
[4]Ibid 360.
Later on 29 July 2016, before the jury, Margaret gave evidence in examination-in-chief consistent with her police statement regarding events on 1 December 2014. The prosecutor did not ask her about events on 2 December 2014. Under cross-examination by Hanna’s counsel, Margaret’s evidence regarding 2 December 2014 was consistent with the account she had given in the Basha hearing. She testified that on 2 December 2014, Tony said, with reference to his statement that was read to him, ‘But I did not say that.’
In re-examination, the prosecution applied under s 38 to cross-examine her about events on both 1 and 2 December 2014. In relation to 1 December 2014, the prosecution argued that Margaret’s evidence was unfavourable (s 38(1)(a)) and that she was not making a genuine attempt to give evidence (s 38(1)(b)). In relation to 2 December 2014, the prosecution adopted the arguments it had relied on in its s 38 application during the Basha hearing.
Counsel for Alex and Hanna opposed the application by the prosecution to cross-examine Margaret before the jury. Neither disputed that Margaret’s evidence was unfavourable.[5] Alex’s counsel opposed the application on the basis that notice of the application was not given until the latest possible opportunity and was therefore unfair.[6] Hanna’s counsel argued that granting leave to the prosecution to cross-examine Margaret under s 38 would have a tendency to reverse the onus of proof.[7]
[5]Regarding events on 1 December 2014, see concession on behalf of Alex at Transcript 417 and on behalf of Hanna at Transcript 415. Regarding events on 2 December 2014, see the concession on behalf of Hanna at Transcript 359, 417.
[6]Transcript 417.
[7]Ibid 414.
As regards events on 1 December 2014, Hanna’s counsel also argued that it was possible Noelle was mistaken about Margaret saying to her that Alex had pointed a gun at everyone in the bungalow. Hanna’s counsel said it was a chaotic scene at 137 on the night of the shooting and, as the ‘000’ call indicated, people were hysterical and screaming. Further, Margaret denied seeing Alex at all on 1 December 2014 and Noelle could not recall seeing Margaret on the night, let alone speaking to her.
Analysis
The evidence of Margaret regarding both 1 and 2 December 2014 was unfavourable to the prosecution, a matter conceded by defence counsel.[8] Whilst the s 38 application by the prosecution was not made at the earliest opportunity (s 38(6)(a))[9] — the prosecution waited until re-examination — it was conceded by counsel for both Alex[10] and Hanna[11] that they would not have conducted their cases any differently if notice of the application had been given earlier.[12]
[8]Regarding events on 1 December 2014, see concession on behalf of Alex at Transcript 417 and on behalf of Hanna at Transcript 415. Regarding events on 2 December 2014, see the concession on behalf of Hanna at Transcript 359, 417.
[9]Failure to give notice of s 38 application at the earliest opportunity is just one consideration that the Court must take into account when deciding whether to grant the application.
[10]Transcript 419.
[11]Ibid.
[12]Cf R v Parkes [2003] NSWCCA 12; Burrell v R [2007] NSWCCA 65; 190 A Crim R 148 at [232]–[246]; see also Burrell v R [2009] NSWCCA 163; 196 A Crim R 199 at [192].
The evidence which the prosecution wished to test was important. As regards 1 December 2014, Margaret’s evidence cast doubt on other evidence suggesting that, in Margaret’s presence, Alex had pointed a gun at people in the bungalow shortly after the shooting. As regards 2 December 2014, Margaret’s evidence was to the effect that the main witness for the prosecution, Tony, disavowed his original police statement, at least in part.[13] The testing of Margaret’s evidence by permitting the prosecution to cross-examine her was, in my opinion, calculated to enhance, not undermine the fact finding process. Defence counsel were not able to point to any unfair prejudice that would be occasioned to the accused or the witness by granting leave to the prosecution to cross-examine Margaret.[14] If defence counsel saw the need for any further cross-examination of Margaret after she had been cross-examined by the prosecution, I indicated I would permit that.
[13]Transcript 404.
[14]Unfairness is relevant to the application of ss 135, 137, 192(2)(b) of the Evidence Act 2008 and the common law unfairness discretion.
Accordingly, I granted leave to the prosecution to cross-examine Margaret under s 38 in relation to her account of events on both 1 and 2 December 2014.
Ruling No 12 — Prosecution application regarding Youssef Semaan (Youssef).
On 2 August 2016, I gave leave to the prosecution to cross-examine its own witness, Youssef pursuant to s 38 of the Evidence Act 2008. I said I would give written reasons for granting leave in due course. I do so now.
Youssef is married to Noelle. He is the brother-in-law of Alex and Hanna.
On the night of 1 December 2014, Yousef was playing cards at the Lyndhurst Hotel, which is not far from 137. Shortly after the shooting, Tony approached him at the Lyndhurst Hotel and asked Youssef to accompany him back to 137. Tony told Youssef that Alex had shot Michael.
When they got back to 137, they saw Hanna outside. Youssef spoke to her in Tony’s presence. In his police statement of 3 December 2014, Youssef gave the following account of this conversation:
Hanna screamed, “He killed a guy, he killed a guy”.
I said, "Who?".
Hanna said, "Alex, he killed Michael".
Youssef told police that when he went to open the side gate, Hanna also said:
Alex still has the gun. Don't go inside the house. He will shoot you as well.
Youssef also told police that:
Earlier when Hanna told me not to go inside she told me that Alex had threatened to shoot the old lady next door, and he threatened to shoot Hanna and Megan.
On 4 April 2016, I ruled that Youssef’s account of what Hanna said to him outside 137 was admissible in Hanna’s trial on Count 2 as evidence that she believed Alex had shot Michael.[15]
[15]R v Semaan & Ors (Rulings 1 & 2) [2016] VSC 124R.
On 9 April 2016, Youssef contacted the Informant, Detective Senior Constable Rob Catania, and told him he wished to change his statement. According to an affidavit sworn by the Informant on 13 April 2016 in relation to an application to revoke the bail of Hanna and Megan, Youssef told him that he wanted to:
[A]mend his statement ..[by]..removing the passage where he says he heard [Hanna] say “He killed a guy he killed a guy…Alex he shot Michael” and other similar references.[16]
[16]Affidavit of Detective Senior Constable Rob Catania sworn 13 April 2016, [29].
On advice from the prosecution, the Informant told Youssef that police would not be taking another statement from him.
The prosecution arranged for Youssef to give evidence before the jury on 1 August 2016. On that morning, the prosecution ‘conferenced’ Youssef for the first time. During that conference, according to the prosecution, Youssef indicated he would give evidence in accordance with his police statement.[17]
[17]Transcript 543.
In examination-in-chief before the jury, Youssef departed significantly from his statement. He said that when he spoke to Hanna on 1 December 2014, she told him not to go inside because someone had been shot but she said she did not know who shot who.[18]
[18]Ibid 539–40.
The prosecution then applied, in the absence of jury, for leave to cross-examine Youssef under s 38.
Hanna’s counsel wanted to explore with Youssef in the absence of the jury why he had contacted the Informant on 9 April 2016 and told him that he wanted to change his statement. A Basha hearing was held. Under cross-examination by Hanna’s counsel, Youssef indicated that he contacted the Informant because he wanted to tell the truth. He said that what appeared in his statement was what he told police on 3 December 2014[19] but that, as far as his conversations with Hanna on 1 December 2014 were concerned, what he told police was untrue. He claimed that Tony had told him to tell police things that were untrue.
[19]Transcript 556.
Hanna’s counsel then argued it would be unfair to let the prosecution cross-examine Youssef under s 38. He submitted that notice of such an application should have been given in April 2016, when Youssef told the Informant that he wished to change his statement. He submitted that Youssef was now adamant that Hanna did not say the things attributed to her in his police statement.
Analysis
There is no dispute that Youssef’s evidence is unfavourable to the prosecution and that he has made prior inconsistent statements to police.
With regard to s 38(6)(a), notice of the application was not given at the ‘earliest opportunity’. As a general rule, once the prosecution have reasonable grounds for believing that a prosecution witness may resile from their statement and give evidence unfavourable to the prosecution, the prosecution should notify the defence of its intention to seek leave to cross-examine the witness under s 38 if that occurs. Since 9 April 2016, the prosecution in this case have been aware of the very real possibility, if not the likelihood, that Youssef would resile from what he said in his police statement and give unfavourable evidence. Accordingly, notice of the s 38 application should have been given in April 2016.
Having said that, Hanna’s counsel did not submit that he was caught unawares by the late s 38 application. Nor was it suggested that Hanna’s case would have been conducted any differently if notice of the s 38 application had been given at the earliest opportunity.
I do not consider that there was any unfair prejudice to the defence or the witness in allowing the prosecution to cross-examine Youssef (ss 135, 137, 192 (2)(b)). Hanna’s counsel could, if he wished, elicit from Youssef that in April 2016 he sought to change his statement but was not allowed by the police to make a further statement. He could also elicit from Youssef, if he wished, his reason for having told the police what he did on 3 December 2014.
Whether Hanna believed that Alex shot Michael was an important issue in relation to the trial of Hanna on Count 2. The evidence that Youssef gave in examination-in-chief was important in that regard, as is the evidence of what he told police on 3 December 2014 (s192(2)(c)).
Finally, allowing cross-examination by the prosecution under s 38 would not, in my view, unduly lengthen the proceedings (s192(2)(a)).
Accordingly, I granted the prosecution’s application to cross-examine Youssef under s 38.
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