R v Tran (Ruling No 3)
[2013] VSC 183
•17 April 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 0074 of 2012
No. 0075 of 2012
No. 0076 of 2012
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| QUOC HAI TRAN NICHOLAS VLADAMIR LEVCHENKO JACQUES TONY FUCILE |
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JUDGE: | LASRY J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 April 2013 | |
DATE OF RULING: | 17 April 2013 | |
CASE MAY BE CITED AS: | R v Tran & ors (Ruling No 3) | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 183 | |
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CRIMINAL LAW – Application by prosecutor to cross-examine own witness – Section 38(1)(a) of the Evidence Act 2008 – Whether evidence “unfavourable” – Advanced ruling pursuant to s192A of the Evidence Act 2008 – No unfairness – Application granted
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr A. Tinney SC and Mr A. Moore | Office of Public Prosecutions |
| For the Accused Tran | Mr L. Carter | Tony Hargreaves and Partners |
| For the Accused Levchenko | Mr I. Hill QC and Mr T. Walsh | |
| For the Accused Fucile | Mr J. McMahon and Ms R. Shann |
HIS HONOUR:
Introduction
The accused Quoc Tran, Nicholas Levchenko and Jacques Fucile are charged with offences arising out of their employment as Security and Services Officers at Crown Casino. In particular, the charges arise from events that occurred on the evening of Sunday 3 July 2011. In my first ruling in this trial I set out the detail background facts of the case and the way in which the Crown case is put against each of the accused.[1] I will not repeat that detail but adopt it for the purpose of this ruling.
[1]R v Tran & Ors [2013] VSC 153R.
On the eighth day of the trial, the prosecutor, Mr Tinney SC, made an application pursuant to s 38 of the Evidence Act 2008 (“the Act”) to question the witness Kris Turner as though he were cross-examining him. That application was foreshadowed by the prosecution in a document dated 28 March 2013 being the prosecution outline of submissions on pre-trial matters. The application is opposed by counsel for each of the accused. At the outset, I ruled ex tempore that I would deal with the matter as an advanced ruling pursuant to s 192A of the Act. It would be open to me, having heard fuller argument, to postpone this ruling until Turner has given his evidence in chief. I have decided not to do so. There is already sufficient evidentiary material on which to rule.
It is important to understand that in this case, the issue is not whether the particular physical events occurred to Ms Ferguson and Mr Anderson but whether, given the circumstances that were prevailing at the time, the Crown can prove beyond reasonable doubt that the accused were not acting in self defence or were not otherwise acting lawfully in discharge of their duties as employees of a casino and which were also licensed premises. The extent to which defences other than self-defence are available to the accused is a matter on which I am yet to rule. As relevant to the offences said to have been committed against Olivia Ferguson and Matthew Anderson, is not only their conduct but the conduct of their companion Anthony Dunning. It is an essential part of the way the defence are conducting this trial that prior to being taken to the ground and restrained, Dunning posed a threat to security personnel and others because of his aggressive attitude and physical presence. At the centre of the Crown case is the CCTV video record of what took place, both in relation to these matters and the incidents involving Anthony Dunning which led to his death and which were the subject of a separate trial in 2012.
This application
As I understand the basis on which the prosecutor’s application is made, it is as follows. Mr Turner is a Crown casino security officer and was a witness and participant in the events of 3 July 2011 involving Anthony Dunning, Olivia Ferguson and Matthew Anderson. In short it is said that he gives a version of events which is unfavourable to the Crown case and is in many respects at odds with other evidence including what is revealed about the incident by the CCTV video record.
On 12 July 2011, Mr Turner made a police statement about what occurred on the evening of 3 July 2011. His statement contains the following description:
I took a primary position, by which I mean I stood behind the male (Dunning). Matt (Lawson) was asking the male to leave. The male asked ‘what for and Matt explained because of his level of intoxication. The male kept stating he wasn’t intoxicated and he wasn’t going to leave. I believe he was by himself at that point but I’m not sure as I was just concentrating on him. He was definitely intoxicated, he had glassy eyes, he was aggressive, he was unsteady on his feet and he smelt strongly of alcohol.
The male was about 6’1” tall, he was a very large male, fair skin, I think grey hair, he looked 50 years old or early 50s to me. He was dressed in a suit. I got on the radio to let Surveillance know that he was becoming aggressive and refusing to leave. This is so my voice is recorded telling them what is happening. As the cameras only record visually they don’t have audio of what’s happening. The male refused at least five times that I recall to leave the floor. I was standing behind but nearly to his side when I placed my right hand on his left elbow and said ‘Come on mate, let’s go’. He turned to me and said ‘don’t fucking touch me. I will crush you’. He looked at me over his left shoulder when he said this and then turned to face me front on. I took a defensive stance on my back leg. I seriously thought at that time that he was going to throw a punch at me. Mat stepped forward, taking the male’s attention back to him and again asked the male to leave a couple more times. He kept refusing saying “I’m not leaving, I don’t have to leave’.
Quoc Tran, the Security Supervisor on the gaming floor, asked him to leave a couple times. I’m not sure when Quoc arrived. The male was still being threatening and aggressive verbally, telling us he could take us all on. Quoc said he just wanted him to leave the gaming floor. He started walking towards the Sante entrance. I believe it was Christian who was showing the male out. Matt wasn’t near him.
The males’ friends, another male and a female started walking with us as well. The female was about 5’6” tall, medium build with blonde hair and I can’t recall the second male other than I think he had brown hair. Mat, Quoc and myself walked with his friends and the male was in front of us with another officer, Christian.
Then the female said, directly to Quoc:
“You’re a fucking cunt’
and slapped him in the face with her right hand. Quoc put the girl on the ground by putting his hand on her back.
I kept my eyes on the male because he was alone with Christian at that time about ten metres in front of us. I watched to see they were okay. Quoc called out for help from behind me. I went over to Quoc, who was on the ground with her. I knelt on the female’s right side and grabbed her arm from under her and held her arm so she couldn’t throw any punches. I put my hands on her arm and held it to the ground; Quoc stated to the female ‘You’ve just assaulted me, do you understand, you’ve just assaulted me?’ I don’t remember her saying anything. I kept my attention on the female so I don’t know what was happening with the two males. We then helped her up and escorted outside to Whiteman Street.
On 18 June 2012, Mr Turner gave evidence at the committal proceeding and was cross-examined on behalf of the accused. He gave evidence consistently with what is in his statement.
At the trial of those accused charged in relation to the death of Anthony Dunning in 2012, Turner was called as a prosecution witness. I was the trial judge. For the purpose of charging the jury in that trial I summarised that evidence to the following effect. Turner said he was on duty on the night of 3 July and heard the call over the radio for assistance. He went to the location where Anthony Dunning was. When he walked out, he saw Matthew Lawson talking to Mr Dunning in front of the Velvet bar. He said that Dunning looked upset and was aggressive. He said he was pointing, looking like he was yelling. He said that was out the front of the Velvet bar but he could not hear what was being said. Turner said that Lawson was standing back, open body language, looking like he was trying to calm him down. Turner then went and stood about a metre or two away. Turner was then shown the CCTV footage and at 22:44:17 he appears.
Turner said that Dunning was yelling at Lawson at the point where Turner originally appeared on the scene. He said he was yelling as he was walking along. Turner said he could not properly hear what was being said. He said he could not remember people being around there. He said he did not recall him having contact with friends or associates. He said he was too busy watching Dunning. He said he was refusing to leave.
Turner said he got onto surveillance to let them know the man was becoming aggressive. He said he tried to deter Dunning by putting his hand on his elbow and said “Come on mate, let’s go” to which Dunning said “Don’t fucking touch me, I will crush you”. He said he yelled that at him. Turner said he then stepped back a bit and he said Matthew Lawson intervened.
Turner said that the next thing that happened was that Quoc Tran asked Dunning to leave and Dunning said he would take them all on. He said that was shouted in an aggressive manner. Quoc Tran then said “I just want you off the gaming floor” and so Dunning began to walk. He was walking towards the exit.
Turner said that the female friend of Dunning’s said to Quoc Tran “You’re a fucking cunt”. She then slapped Quoc Tran. The female was then put on the ground. Dunning had not yet seen what had happened. Turner said he was told by Lawson to help Quoc Tran and so he knelt by the female, assisting in restraining her.
In cross-examination by Mr Hill QC who then appeared for Lawson and in this trial appears for Levchenko, part of the CCTV was played to Mr Turner and he identified himself and Quoc Tran. He was shown the video footage. He identified where Dunning was claimed to threaten him. On a couple of occasions, Turner was asked whether anything was said at stages where Dunning and he are looking at each other and he said he could not remember. At one point where Turner said that Dunning’s arm was coming around, he said he was worried for Lawson’s safety and thought that Dunning could actually hit Lawson.
In the course of submissions in respect of the application now under consideration, Mr Tinney SC particularly relied on the following parts of Mr Turner’s evidence-in-chief during that trial. First at page 350 of the transcript:
When you came out there what did you see? --- When I walked out I seen Matthew Lawson talking to a male. The male looked a bit upset. Matthew was talking to a male at the time.
Where was this? --- In front of the Velvet Bar.
Yes. What did you say about the male, did you say he looked a bit upset? --- He looked very upset, he was aggressive.
Aggressive, in what way? --- He was pointing, looked like he was yelling at Matt but I couldn't hear from that distance.
At page 355:
How did things then go on from there? --- The male then turned, looked over at me and said, “Don’t fuckin’ touch me, I will crush you”.
“Don’t fuckin’ touch me, I will crush you”? --- That’s what he said.
Would you be able to tell us anything about the volume at which that was said? --- I don’t understand.
Did he whisper it, did he yell it? --- He yelled it.
How many security people were there present when that threat was yelled? --- Like I said, I was just watching the male.
After you say that threat was uttered to you, yelled to you, what did you do? --- I stepped back a bit.
And at page 356:
Yes, and then what happened after she (Ferguson) came into the picture? --- She said to Quoc, “You’re a fucking cunt” and then slapped Quoc.
Did you actually see that? --- I did see that, yes.
So did you see the slap connect? --- Yes, and heard it.
The Competing Submissions
Having outlined the evidence that he understood Turner would give, Mr Tinney SC’s submission was that on any view, the evidence of Turner was evidence unfavourable to the prosecution case. Mr Tinney SC submitted that given that the issue in this trial is self-defence and an important part of that issue concerns the belief in the necessity for the accused to do what they did to Ferguson and Anderson, the issue of the aggression or the lack of it by Anthony Dunning is a relevant and important matter. On that issue, Turner’s evidence is unfavourable.
Mr Tinney SC pointed out that it is also an important issue in this case as to how Ms Ferguson was dealt with and according to the defence the conduct which was engaged in in relation to her was justifiable not only by what Dunning had done and said but by what she had done and said. Likewise, in my opinion, Turner’s evidence is unfavourable on that issue.
In his submissions opposing the application, Mr Carter, on behalf of the accused Tran, submitted that I should pay careful attention to what the word “unfavourable” means. He referred to and relied upon what Curtain J said about that term in DPP v McRae[2] and particular the following:[3]
The word “unfavourable” does not mean adverse or hostile. It is taken to mean “not favourable” as was held by Smart J in R v Souleyman (“Souleyman’s case”)[4] and subsequently followed by courts in New South Wales. Although the Federal Court in Hodgkiss v Construction, Forestry, Mining and Energy Union (“Hodgkiss’s case”),[5] characterised “unfavourable” as having “to detract from the case of the party calling the witness”, it appears from my reading of the authorities that the approach of Souleyman’s case[6] is generally preferred and I would apply that definition. Nonetheless, even on the more restricted approach as stipulated in Hodgkiss’s case,[7] Flaherty and Connally would meet the requirements of unfavourable.
[2][2010] VSC 114.
[3]At [24].
[4](1996) 40 NSWLR 712.
[5][2006] 152 FCR 560.
[6](1996) 40 NSWLR 712.
[7][2006] 152 FCR 560.
Mr Carter then referred to the judgement of the NSW Court of Criminal Appeal in R v Pantoja.[8]In that case, an application was made by the prosecutor in a murder trial to cross-examine a Crown witness originally on the basis of s 38(1)(c) of the Act – a prior inconsistent statement. The trial judge permitted that to occur. The evidence the witness gave which precipitated the prosecutor’s application under s 38(1)(c) had occurred in cross-examination not evidence-in-chief. There had been no application during the evidence-in-chief. The Court of Criminal Appeal rejected the ground of appeal. Mr Carter relies in particular on the obiter dictum of Adams J to the following effect:
It should be noted that s 38(1)(a) is confined to circumstances in which a witness gives “unfavourable” evidence. Other paragraphs of the subsection give other grounds for cross-examination, of which para (b) is directly applicable to the circumstances here and which would have permitted the Crown to ensure that this important evidence went to the jury upon an accurate basis. However, as I have said, he did not choose this course. It seems to me that some attention will need to be given in due course to the meaning of "unfavourable" so far as the Crown case is concerned. The Crown case is, in essence, the truth, wherever that might lead and even if it leads to a reasonable doubt about guilt. I am far from persuaded that merely because a witness declines to give evidence supporting the theory of the facts for which the prosecution contends or, indeed, gives evidence that contradicts that theory or contention, his or her evidence may thereby be regarded as "unfavourable". How can truthful evidence ever be "unfavourable" from the Crown's point of view? In the circumstances of this case, however, there were good reasons for concluding that, if not untruthful (and I do not think that this was ever suggested in the sense of being deliberate) the evidence of the witness as adduced by the cross-examination was doubtful, even if (by parity of reasoning) the evidence adduced in chief by the Crown was also doubtful. (Emphasis added.)
[8][1998] NSWSC 565.
In the later NSW case of Kneebone[9] Greg James J said:
Section 38 of the Evidence Act refers to the concept of the witness being “unfavourable”. In the context of a criminal case, care may have to be given to the question of what “unfavourable” to the Crown means. That concept will not necessarily be satisfied simply because the witness’ potential testimony does not accord with some prosecutor’s view of the appropriate “camp” or some case theory which does not accord with all the otherwise reliable evidence. (Emphasis added.)
[9]R v Kneebone (1999) 47 NSWLR 450 at [54].
Mr Carter then sought to persuade me that the evidence that Mr Turner gives about what was said and done by Olivia Ferguson is not, on analysis, unfavourable. Mr Carter also persisted in submitting, as he had on the application under s 192A, that the application was premature. Finally he submitted that bearing in mind the considerations under s 192 of the Act, such a procedure would be unfair because it would be no more than the prosecutor “beating up”[10] on a witness because his evidence is at odds with that of Olivia Ferguson.
[10]Transcript at page 603.
Mr Hill QC, on behalf of Levchenko, adopted the submissions of Mr Carter. He relied on a portion of the CCTV footage which he submitted supported the evidence to be given by Turner. I have looked at that footage.
Mr McMahon, on behalf of the accused Fucile, complained that the purpose of s 38 of the Act was not to permit the adoption of “clever strategies” by prosecutors. He argued that this application was based on Mr Tinney SC’s subjective view of the evidence. Mr McMahon also made submissions about the meaning of “unfavourable” and suggested that based on Adam v R,[11] to be unfavourable, the witness’s evidence must have an unhelpful quality about it.
[11](2001) 207 CLR 96.
Mr McMahon also referred to s 38(6)(b) and submitted that Turner would in any event be cross examined about these issues on behalf of the accused. The Court, he argued, would not be deprived of relevant testimony if I did not grant the prosecutor’s application. Finally he submitted that under s 192, to grant the application would be unfair to the accused because this was no more than a “strategic engagement” and the prosecution were being selective.
Analysis and the meaning of “unfavourable”
It is necessary to consider how s 38 of the Act applies in a criminal trial. Section 38 is in the following terms:
(1) A party who called a witness may, with the leave of the court, question the witness, as though the party were cross-examining the witness, about—
(a) evidence given by the witness that is unfavourable to the party; or
(b) a matter of which the witness may reasonably be supposed to have knowledge and about which it appears to the court the witness is not, in examination in chief, making a genuine attempt to give evidence; or
(c)whether the witness has, at any time, made a prior inconsistent statement.
(2) Questioning a witness under this section is taken to be cross-examination for the purposes of this Act (other than section 39).
(3) The party questioning the witness under this section may, with the leave of the court, question the witness about matters relevant only to the witness's credibility.
(4) Questioning under this section is to take place before the other parties cross-examine the witness, unless the court otherwise directs.
(5) If the court so directs, the order in which the parties question the witness is to be as the court directs.
(6) Without limiting the matters that the court may take into account in determining whether to give leave or a direction under this section, it is to take into account—
(a)whether the party gave notice at the earliest opportunity of the party's intention to seek leave; and
(b)the matters on which, and the extent to which, the witness has been, or is likely to be, questioned by another party.
(7) A party is subject to the same liability to be cross-examined under this section as any other witness if—
(a)a proceeding is being conducted in the name of the party by or on behalf of an insurer or other person; and
(b)the party is a witness in the proceeding.
It is to be noted at this stage that in considering an application such as this I am also required to consider the matters raised in s 192 which provides:
(1) If, because of this Act, a court may give any leave, permission or direction, the leave, permission or direction may be given on such terms as the court thinks fit.
(2) Without limiting the matters that the court may take into account in deciding whether to give the leave, permission or direction, it is to take into account—
(a) the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing; and
(b) the extent to which to do so would be unfair to a party or to a witness; and
(c) the importance of the evidence in relation to which the leave, permission or direction is sought; and
(d)the nature of the proceeding; and
(e)the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence.
In criminal trials, applications are made in circumstances like this from time to time. As the High Court noted in Adam v R:[12]
The judge, in considering whether to grant leave to cross-examine, took account of the several matters which the parties advanced as bearing upon that question. It is not necessary to notice the detail of them, beyond noting that the trial judge formed the view that if leave were given, the accused persons would not experience any unfairness. Not only, in the judge's view, was it to be expected that the witness would give a version of events in evidence in chief that was likely to be contradictory of the prosecution case and favourable to the accused, it was expected that he would be co-operative when cross-examined by defence counsel. The judge referred expressly to the various considerations mentioned in s 192(2) of the Act.
[12](2001) 207 CLR 96 at [28].
The situation confronting me in DPP v Bourbaud[13] has some parallels to the situation in this case. In that case the prosecutor sought leave under s 38 to cross-examine three witnesses including the parents of the accused and a friend of the family. They were involved in the fracas that led to the death of the deceased. There had been an earlier trial before T Forrest J at which they had given evidence on the issue of self-defence favourably to the accused. Unlike this case, counsel for the accused accepted that the evidence was unfavourable. The problem was that they had pleaded guilty to offences and their evidence was now inconsistent with their pleas. The residual question was how the evidence of their pleas of guilty would be able to be used. Mr Carter reminded me that in that case I referred to what Curtain J had said in McRae as a “careful and thorough ruling”.[14] He is correct about that and I respectfully reiterate that view. My comment was made in the context of citing that which her Honour had referred to about the purpose of s 38 of the Act and, in particular, where her Honour said:[15]
In R v Lozano (‘Lozano’s case’),[16] it was acknowledged that the purpose of the section was to ensure that the courts are not deprived of relevant testimony which had previously been excluded by operation of the hostile witness rule. The Australian Law Reform Commission, in its report of 2005, refers to the guiding principle under s 38 as “improvement in fact-finding by enabling a party who calls a witness to challenge unfavourable evidence by cross-examining that witness”, and the report comments that the principle has been upheld by the operation of the section over the ten years since its inception, as it then was, and that despite some criticism, it had received strong judicial support.[17]
[13][2011] VSC 103.
[14]At [36].
[15] DPP v McRae [2010] VSC 114 at [21].
[16]R v Lozano [1997] NSWCCA 60487 of 1996 (Unreported, Hunt CJ, Sperling and Barr JJ, 10 June 1997).
[17]Citing R v Milat [1996] NSWSC 70114 of 1994 (Unreported, Hunt CJ) and Adam’s case (2001) 207 CLR 96.
I have highlighted a portion of her Honour’s ruling because it is an important means by which to understand how s 38 should operate. There is no question that the section represents a fundamental change in the law since the principles of hostile or adverse witnesses. As Smart J said R v Souleyman,[18] “unfavourable” does not mean adverse. “It means not favourable”. My attention was drawn to the observations of Graham J in Hadgkiss v CFMEU[19] where his Honour suggested that to be unfavourable, the evidence must have “an unhelpful quality about it, as opposed to a neutral quality.” For the purpose of this application I am content to consider whether or not Turner’s evidence has an “unhelpful” quality to it.
[18](1996) 40 NSWLR 712 at p715.
[19][2006] FCA 941 at [9].
Applications under s 38 do not depend on establishing a prior inconsistent statement. So much is clear from the section itself. Leave may be granted because the evidence is “unfavourable”; because the witness is not making a genuine attempt to give certain evidence or the witness has made a prior inconsistent statement.
The observations of Adams J and Greg James J in Pantoja and Kneebone relied on by Mr Carter are, as he properly noted, obiter but in my opinion they have no application to the circumstances before me. The prosecutor’s application is not based on the witness’s conflict with a prosecution theory – there is a respectable argument to be made that Turner’s evidence is genuinely unfavourable to the prosecution case as it was opened and as it currently stands after nine witnesses have been called. In my opinion, Turner’s evidence is inconsistent with a significant part of that evidence.
With all due respect to Adams J in particular, the prosecution are entitled to put a case in order to prove the essential elements of the charge in the indictment. McLellan J in R v Le[20] commented on their Honour’s observations as follows:
It must be accepted, as Adams J identified that the relevant provisions of the Evidence Act should be construed to ensure that the ultimate purpose of the trial is facilitated. With respect to s 38 that purpose, as identified in the earlier authorities, is to ensure that the Court is not denied evidence which might be relevant to enable the truth to be ascertained. As Hunt CJ at CL pointed out, one of the concerns which, no doubt, led to s 38 being enacted, was that because the Crown may be unable to contradict evidence which it is required to call, in some cases the Court may be denied evidence which could be relevant to ascertain the truth.
Adopting this approach to the section, in my opinion, the word “unfavourable” should be given a broad meaning thereby ensuring that in the course of any criminal trial the Court would not be denied evidence as to any relevant issue and would not be denied the opportunity for that evidence to be appropriately tested. Only this approach will allow the jury to have the opportunity of coming to an informed view about whether or not the evidence called by the Crown should be accepted. (Emphasis added.)
[20][2001] NSWSC 174 at [14]. See also R v SH (2011) 256 FLR 123 at [35].
Based on what I have described above, I am persuaded that the evidence to be given by the witness Kris Turner is unfavourable pursuant to s 38(1)(a). It is distinctly “unhelpful”. I would reserve the question of whether he also comes within the terms of s 38(1)(b).
The exercise of the discretion
There remain the questions of whether I should exercise my discretion under ss 38 and 192A. In my opinion, the particular considerations set out in s 192(2) which are relevant to this application are:
(b)the extent to which to do so would be unfair to a party or to a witness; and
(c)the importance of the evidence in relation to which the leave, permission or direction is sought; and
(d)the nature of the proceeding;
The unfairness complained of as I understood it, was that it would be unfair to allow the cross examination to occur of a witness who could not be described as unreliable simply because his evidence conflicts with what one other witness, Ms Ferguson, said took place. I reject that submission. That is not the basis on which the application is made. The prosecution have made it clear that their reliance is on what is shown on the CCTV footage and that this witness gives evidence helpful to accused and at odds with that other evidence. He describes centrally important utterances of aggression by Dunning and Ferguson which no-one else heard, at least so far. I see no unfairness in that evidence being the subject of cross-examination. Further, as to Mr McMahon’s submissions, I do not accept that this application is no more than a step in a prosecution strategy.
Clearly the evidence of Turner is important in this trial. It goes to the central issues in the case. If the prosecution are not permitted to challenge and test the evidence of this witness, it is extremely unlikely that that will occur otherwise.
Conclusion
I am satisfied that the witness Kris Turner’s evidence will be “unfavourable” to the prosecution case. I am also satisfied that I should exercise my discretion to permit cross-examination of this witness. Failure to do so would result in the truth and accuracy of important evidence not being tested or challenged. I do not consider that this would create an unfairness, either to the witness or the defendants. Therefore, pursuant to ss 38 and 192A of the Act, I grant the prosecution leave in advance to cross-examine the witness Kris Turner.
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