R v Wilio (Ruling No 1)
[2021] VSC 71
•9 February 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2019 0212
| THE DIRECTOR OF PUBLIC PROSECUTIONS | Crown |
| v | |
| NORDEN WILIO | Accused |
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JUDGE: | TINNEY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 9 February 2021 |
DATE OF RULING | 9 February 2021 |
DATE OF REASONS: | 23 February 2021 |
CASE MAY BE CITED AS: | R v Wilio (Ruling No 1) |
MEDIUM NEUTRAL CITATION: | [2021] VSC 71 |
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CRIMINAL LAW – Murder – Shootings of two men – Refusal by Crown to call witness who might attest to self-serving statement made by accused after shootings – Whether evidence relevant – Whether infringed hearsay rule – Whether admissible under admissions exception to the rule – Whether should be led as a matter of fairness by Crown under mixed inculpatory/exculpatory statement exception – Evidence hearsay and not admissible under any exception – No other basis for admissibility – No basis for questioning prosecutor about decision not to call witness – Incriminating conduct evidence – Disposal of items, flight from scene, and threat to a person – Whether reasonably capable of being viewed by jury as evidence of incriminating conduct – Only relied on by prosecution as going to one element of crime of murder in each case – No fault with that approach – No vagueness or uncertainty as to evidence or way in which it was to be used – Evidence passed test for admissibility of incriminating conduct evidence – Evidence Act 2008 ss 55, 56, 59, 81; Jury Directions Act 2015 s 20.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr R Gibson QC with Mr G Hayward | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Accused | Mr J Desmond with Mr A Chernok | Emma Turnbull Lawyers |
HIS HONOUR:
Introduction
The accused is to stand trial on an indictment containing a charge of attempted armed robbery and two charges of murder. Rulings were required in respect of a number of pre-trial issues. Some of those issues fell away during the pre-trial hearing. Two remained.
Having heard submissions in respect of the two remaining matters, I made rulings on 9 February 2021 in each case, providing limited reasons. I indicated that I would publish detailed reasons for these rulings at a future time. These are those reasons.
Facts
The accused is charged with the murder of one of his associates, Ali Ali (‘Ali’), and of Deniz Hasan (‘Hasan’), who was allegedly the target of an attempted armed robbery by the accused and Ali.
The accused is alleged to have intentionally shot and killed Hasan, and to have accidentally shot Ali while trying to shoot Hasan. In relation to the death of Ali, the applicant is charged with common law murder (relying on the doctrine of transferred malice) and, in the alternative, statutory murder occurring in the course or furtherance of the attempted armed robbery of Hasan. He is charged with common law murder in respect of Hasan.
It is alleged that on the afternoon of 4 March 2019, Ali and an associate, Ibrhim El Ali (‘Ibrhim’) made a decision to purchase some cannabis and engaged Ibrhim’s brother, Ali El Ali (‘AEA’), to liaise with Hasan, who was a cannabis dealer. AEA arranged to meet Hasan in Huntley Court, Meadow Heights.
Hasan drove to a pre-arranged location with his associate, Josip Civcija (‘Civcija’). Ali and Ibrhim were driven to Ellam Court, Meadow Heights, close to Huntly Court, by a friend named Bakopoulos. They walked through a paddock before Ibrhim met Hasan in Huntly Court as Ali hid nearby. Hasan provided Ibrhim with a small sample of cannabis. Ibrhim noticed a significant amount of cannabis in the boot of Hasan’s vehicle.
Ibrhim provided the sample to Ali, informing him of what he had seen in the boot of the vehicle. The two men returned to Bakopoulos’ vehicle. Ali requested that he drive them to the accused’s premises in Broadmeadows. Ali attended inside before returning with the accused, who allegedly had a shotgun secreted in his jacket.[1] Bakopoulos drove all three men back to Ellam Court. At the same time, Hasan arrived in the area to the south of Ellam Court.
[1]It is not alleged on the prosecution case that Bakopoulos and Ibrhim were aware of the weapon at that time.
The accused and Ali approached Hasan. An argument occurred between Ali and Hasan, during which the accused produced the shotgun. After being shown by Ali that the shotgun was loaded, Hasan fled the scene towards Huntly Court. He was pursued by the accused and Ali, who, it is alleged, intended to rob him of his cannabis.
On his arrival back at Huntly Court, Hasan tried to get into his vehicle, in which Civcija was seated in the front passenger seat. Hasan tried to get into the driver’s seat but was dragged from the car by Ali and hit across the head with the shotgun by the accused.
While Hasan struggled with Ali, the accused discharged the firearm towards them, intending to shoot Hasan, but striking Ali to the torso instead. He then discharged the firearm a second time, striking Hasan to the head. Ibrhim witnessed these events from close by, as did Civcija who watched from the passenger seat. Residents in the area heard two shots in quick succession. Ibrhim ran away after the second shot.
Civcija went to the aid of Hasan, who had fallen to the ground. The accused helped Ali into a nearby shopping trolley and pushed the trolley to a point in Morris Court, Meadow Heights, where the trolley tipped over and Ali fell to the footpath, screaming in pain. At some point whilst in Morris Court, it is alleged that the accused disposed of two shotgun cartridges and a pair of Ansell gloves in a drain outside number 6, where they were later recovered by police. The accused shortly thereafter telephoned a friend, Samaher Ayache (‘Ayache’), asking her to come to her house in Morris Court. When Ayache arrived there in a car driven by her sister, Samar El Hussein (‘El Hussein’), the accused told Ayache, ‘I just need you to help me get out of here’. The accused then insisted that El Hussein drive him away. At his direction, she drove the vehicle to Towonga Street, Broadmeadows, a distance of about 3.5 km. Before leaving the car, the accused allegedly told El Hussen not to say anything or else he would hurt her.
Police and ambulance paramedics arrived at the scene of the shootings. Hasan was unconscious and could not be revived. Ali was initially conscious and breathing, but soon lapsed into unconsciousness and died at the scene.
Post mortem examinations revealed that the shotgun blast to the torso of Ali had entered on the left lower anterior chest wall, causing significant internal injury to the lung, left ventricle of the heart, hemidiaphragm, stomach, spleen, and major internal abdominal blood vessels. There was significant bleeding into the chest and abdominal cavities. The cause of death of Hasan was a shotgun wound to the head, with the wound situated on the right side of his face, involving pellet abrasions across the right side of his head and neck and a spread of approximately 24 cm.
During a crime scene examination of Huntly Court, a black Raiders cap was located. In a drain in Morris Court, police recovered the pair of gloves and two shotgun cartridges mentioned earlier. Examination of the Raiders cap and one of the gloves found in the drain revealed the presence of DNA consistent with being the DNA of the accused.[2] The shotgun used in the shootings was never recovered.
[2]In each case, the statement from the DNA scientist indicated, in respect of those findings, that ‘The DNA evidence is 100 billion times more likely if Norden Wilio is a contributor’.
The accused was arrested at his home in Broadmeadows on 26 March 2019. He provided a ‘no comment’ interview.
The refusal by the Crown to call a witness
Background
There are two witnesses whose names appear on the indictment whom the Crown has made a decision not to call in the trial. These are Alay Ali (‘Alay’), the brother of Ali, and Ali Esber (‘Esber’), the cousin of Ali. Neither witness gave evidence at the committal hearing, leave not having been sought by the defence.
On the face of his statement,[3] Alay would have no relevant evidence to give in the trial. He described being with Ali in the afternoon until about 4.30pm when Ali went out. Alay then became concerned about Ali, having heard helicopters over the house. He subsequently found out about the death of his brother. Alay did not indicate that he had had any conversation with the accused in the aftermath of the events.
[3]Depositions 303. The statement was made on 5 March 2019.
Esber made a statement[4] about things he heard after the death of Ali. In the statement, he stated that while he was with Alay in the aftermath of the events, Alay went outside and spoke with the accused on the phone. Alay told Esber that the accused had informed him that Ali had shot someone and then had shot himself in the stomach while running.
[4]Ibid 330.
Defence position
It was the position of Mr Desmond, who with Mr Chernok appeared for the accused, and relied on a written outline and oral submissions, that the Esber statement disclosed admissible evidence, and that Alay might also have relevant evidence to give if he confirmed that he was told by the accused what Esber says was conveyed to him.
Mr Desmond submitted that the Crown should call Alay on the voir dire, permitting him to be examined as to the assertions contained in Esber’s statement. Only then would the Court be in an informed position to determine the potential relevance of Alay and Esber as witnesses.
In the alternative, he submitted that at the very least, the police should make a further enquiry of Alay as to whether the accused did make a statement to him concerning the circumstances of the shootings.
Mr Desmond submitted that the question of whether the accused made the statement to Alay communicated by the latter to Esber is relevant evidence under s 55 of the Evidence Act 2008 (‘the Act’), going to the core issue of the case, namely, who was the shooter. He submitted that the assertion by the accused on the night of the events that another person was responsible for both shootings would be relevant to the jury’s assessment of the accused’s defence - disclosed in Court by Mr Desmond, although not touched on in the defence response - that Ali was the shooter of Hasan and himself. It would add credibility to the accused’s defence, be relevant to any attack of recent invention made by the Crown upon the accused should he give evidence in the trial, and prevent any subconscious question of recent invention arising in the minds of the jury.
In addition, submitted Mr Desmond, the statement apparently made to Alay was a denial to the charge of murder made by the accused at the earliest opportunity. MrDesmond submitted that it has always been the practice in this state for the prosecution to lead evidence of denials of guilt by accused persons as a matter of fairness, and this is not confined to denials made to investigating police. As he put it, ‘This fundamental principle of fairness can be no more significant and operative than in a murder trial’.[5]
[5]Outline [14].
Mr Desmond submitted that the evidence could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue, namely, the identity of the shooter.
Another matter relied on by Mr Desmond as showing the relevance of the possible evidence of Alay in the trial was the fact, as he indicated to the Court, that he intended to cross-examine the informant as to the adequacy of the police investigation, and whether the informant followed up this line of enquiry with Alay would be relevant to that.
In a later response to the prosecution contention that a statement by the accused to Alay, even were it made, to the effect that Ali had been responsible for both shootings, would be hearsay and therefore inadmissible, Mr Desmond submitted that the statement could be viewed as an admission against interest, and would be admissible under the admissions exception to the hearsay rule.[6]
[6]Evidence Act 2008, s 81(1).
Mr Desmond submitted that depending on how things proceeded with any further police questioning of Alay and any evidence given by him on the voir dire, the Court should call upon the prosecutor to justify his decision not to call the witness in the trial, potentially ask the prosecutor to reconsider his decision, and even take the step of inviting the prosecutor to call the witness into the witness box and make him available for cross-examination in front of the jury. These submissions purported to be based on the principles in R v Apostilides[7] and in some earlier and later authorities set out in the defence outline.
[7](1984) 54 CLR 563 (‘Apostilides’).
Crown position
By way of background to his submissions, Mr Gibson informed the Court that on 13 March 2019, that is, one day after Esber made his statement in which he claimed to have been told by Alay about the statement purportedly made by the accused, the police informant again spoke to Alay. Again, Alay made no mention of having had any conversation with the accused on 4 March 2019 or at any later time. Some phone record evidence would indicate in fact that Alay may have spoken to the accused at some relevant times, but he said nothing of this. Furthermore, when asked to make a further statement, he declined to do so. Therefore, the reality was that the police had further investigated the matter. The witness had failed to cooperate, and acted in a manner which casts doubt on his reliability should he now attest to such a conversation with the accused. There were indications that he may be in the defence camp, so to speak.
Mr Gibson submitted that the purported statement by the accused would be nothing more than an entirely self-serving statement, which would be hearsay, and not admissible under any of the exceptions to the hearsay rule. In this regard, it would be wrong to describe the statement as an admission. It was not, he submitted, as it could not possibly meet the definition of an admission as set out in the Dictionary to the Act.
As for the defence contention that the out-of-court statement by the accused should be led by the Crown as a matter of fairness, pursuant to the principle whereby self-serving denials by an accused in a police interview are routinely led by the prosecution, Mr Gibson submitted that the two situations cannot be likened. This would amount to an unwarranted extension of that principle.
Aside from his central position that the evidence of Alay would be inadmissible in any event, Mr Gibson resisted any move to call the witness for a hearing under s 198B of the Criminal Procedure Act 2009. The witness could have been called at the committal, and was not. In the circumstances of this case, including the fact that, if called, the anticipated evidence would be inadmissible and unreliable, the defence are unable to pass the high hurdle standing in the way of the holding of a s 198B hearing for this witness.
Dealing with the defence submission that the evidence of Alay may be necessary to deal with an attack of recent invention made against the accused should he give evidence, Mr Gibson made it clear that he would launch no such attack. As for the suggestion that the jury may engage in such reasoning without having been asked to do so, he submitted that this was not a realistic concern.
As to the defence contention that the Crown should be prevailed upon by the Court to justify its decision not to call the witness, or required to make the witness available for cross-examination, there was nothing in that. The Crown could be under no duty to call Alay as a matter of fairness in accordance with the authorities governing the conduct of prosecutors, submitted Mr Gibson. Alay was not an eye-witness, and nor could it be said that his potential testimony would be necessary for the unfolding of the narrative in the trial. Furthermore, he is a witness who has shown himself to be unreliable in any event.
Incriminating conduct evidence
Background
The Crown served a notice of incriminating conduct setting out four items sought to be relied upon in that manner. As described in the notice, these were:
a)The accused’s disposal of shotgun shells and gloves.
b)The accused’s flight from Morris Court prior to police attending.
c)The accused threatening Samar El Hussein not to say anything.
d)Following the shooting the accused disposed of the shotgun.
In the notice, the Crown indicated the way in which the evidence would be relied upon as follows:
The conduct is relied upon as evidence amounting to an implied admission that the accused caused the deaths of Deniz Hasan and Ali Ali.
The defence sought the exclusion of all of these items of evidence. Primarily, the defence asserted that the evidence should not be permitted to be relied upon as evidence of incriminating conduct. Once that determination was reached, then in spite of any other ways in which the evidence could be said to be relevant, it should be excluded under either s 135 or s 137 of the Act.
Defence position
Mr Desmond submitted that the Crown position of seeking to rely on the conduct in question as evidence amounting to an implied admission that the accused caused the deaths of the two deceased ‘lacks sufficient particularity’ and involved inherent vagueness creating a danger of misuse by a jury.
He labelled the Crown position of relying on the evidence as going to only one element of the crime of murder as ‘simplistic’ and a ‘misnomer’ which in fact would lead to further complexity. This was particularly so, he submitted, in circumstances where there were a number of ways in which the Crown would seek to prove guilt of the murder of Ali.
In respect of the disposal evidence concerning the cartridges, gloves and shotgun, Mr Desmond submitted that reliance upon this conduct was:
simply a mode by which the prosecution seeks to bolster the circumstantial evidence available from which inferences might be drawn…Rather than simply relying on bare inference, the prosecution seeks to cloud reasoning about these facts with prejudicial considerations of implied admission. Rather than have the triers of fact focus on the drawing of permissible inferences, the prosecution case erroneously elevates the importance of this evidence.[8]
[8]Defence outline [6] (citations omitted).
In respect of the flight and threat evidence, Mr Desmond submitted:
…the prosecution seeks to rely upon the evidence as an implied admission – but it is entirely unclear as to what the admission relates to in circumstances where the proof of (sic) prosecution case is predicated on a variety of pathways to guilt. It is submitted that the evidence is not reasonably capable of being treated as evidence of incriminating conduct as it cannot be determined whether it does amount to an implied admission and, more particularly, if it does then to what the admission relates.[9]
[9]Ibid [7] (citations omitted).
Mr Desmond submitted that the disposal evidence was not reasonably capable of being viewed by a jury as evidence of incriminating conduct in connection with the shooting, as opposed to tending to prove that the accused was present at the scene. He went on to submit that the evidence was ‘a long way from…establishing on any logical basis that he’s the shooter’.[10] Further, he submitted that even in conjunction with the other evidence, the disposal evidence was not reasonably capable of ‘being seen as going towards who’s the shooter’.[11] Mr Desmond described it as a ‘vice’[12] that the evidence was being ‘elevated and used in this way’ to buttress the evidence of the eye-witness Civcija.
[10]Transcript 91.
[11]Ibid 92.
[12]Ibid 92.
In respect of the flight and threat evidence, Mr Desmond made essentially the same submission, namely that it was not reasonably capable of being viewed as incriminating conduct pointing to the accused being the shooter, as opposed to someone who was present at the scene.
Mr Desmond made submissions concerning the application of ss 135 and 137 of the Act, but these submissions, as he made clear, were aimed at the exclusion of the evidence should the Court rule that it could not be relied on as evidence of incriminating conduct. In the circumstances, it is not necessary to summarise these submissions.
Crown position
Mr Hayward for the prosecution confirmed the Crown position to be that the incriminating conduct was only relied upon as going towards the proof of one element of murder, namely, that the accused committed the acts which caused the death of the two victims. This, he submitted, would avoid the complexity sometimes resulting from the use of incriminating conduct as going to the state of mind of the accused.
He refuted the defence contention that the way in which the prosecution sought to rely on the evidence lacked sufficient particularity or was marked by any vagueness. On the contrary, he submitted that the conduct relied upon was clearly spelt out, as was the evidence upon which it was based.
Mr Hayward took the court to s 20 of the Jury Directions Act 2015 and to Maxwell P’s summary of the judge’s role in Director of Public Prosecutions v Scriven (Ruling No 4)[13] as follows:
In short, the question for the judge to determine under s 24(1)(b) is whether, on the whole of the evidence, it would be reasonably open to the jury to conclude that the conduct in question could only be explained by the accused’s having had the relevant belief in his own guilt. The judge is assessing — as best he/she can — what the jury, acting rationally, would be entitled to make of the conduct, viewed in the context of all of the evidence.
In assessing competing innocent explanations, the judge is anticipating — is obliged to anticipate — how rational jurors would be likely to undertake the same exercise. But this is not a usurpation of the jury’s function. On the contrary, it is a proper safeguard to ensure that post-offence conduct is not allowed to go forward as a form of self-incrimination unless there is a rational path open to the conclusion that the conduct cannot be explained in any other way.[14]
[13][2015] VSC 220.
[14]Ibid [23]-[24].
Dealing first with the disposal of the gloves and shotgun cartridges, Mr Hayward submitted that it would be reasonably open to a jury to conclude that the only explanation for the accused’s conduct was that he knew that he had caused the death of the two deceased. In support of this contention, Mr Hayward pointed to not only the nature of the items disposed of, but the location and timing of that disposal. Choosing to dispose of the gloves and live rounds of ammunition showed an awareness by the accused that these items would connect him with the shootings. The choice of a drain in Morris Court was indicative of a considered choice of a good place of concealment, as opposed, for instance, to a hasty throwing of the items over a fence. The retention of the shotgun in spite of the disposal of the other items would be further conduct pointing against a possible explanation of panic by an innocent person. As for the timing, the evidence would suggest the disposal of the items occurred at a time when the accused’s friend Ali was in the process of dying close by. It was telling that the accused saw fit and took the time and effort to dispose of those items at such a time.
In respect of the flight of the accused and the later threat to the driver, Mr Hayward pointed to the decision to flee being made and acted upon while Ali was in the process of dying nearby, the insistence the accused expressed that he be driven away, despite resistance, and the fact that he prevailed upon a person whom he had never met before to carry out this task. A jury could conclude that the conduct of the accused was squarely aimed at physically distancing himself from the crime and the crime scene, even if it meant abandoning his dying friend and relying on the assistance of a stranger. Furthermore, a jury could conclude that he saw the strong need to maintain his concealment; hence the threat.
Mr Hayward submitted that the evidence of flight and the making of the threat would comfortably meet the requirements of admissibility.
In respect of the shotgun evidence, Mr Hayward submitted that the fact of the shotgun having never been found would entitle a conclusion that the accused must have disposed of it. If that conclusion was reached, again, Mr Hayward submitted that the removal and disposal of the shotgun which had been used in the killing of two people would warrant a conclusion that the accused engaged in that conduct because he knew he had shot the two people and that the shotgun may link him with those crimes.
Mr Hayward made submissions in respect of the operation of ss 135 and 137 of the Act which, for present purposes, it is not necessary for me to summarise.
Law
Section 55(1) of the Act provides:
The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
Section 56(1) dictates that unless otherwise provided by the Act, evidence that is relevant in a proceeding is admissible.
The important exclusionary rule known as the hearsay rule is contained in s 59. It provides:
(1)Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.
(2) Such a fact is in this Part referred to as an asserted fact.
(2A)For the purposes of determining under subsection (1) whether it can reasonably be supposed that the person intended to assert a particular fact by the representation, the court may have regard to the circumstances in which the representation was made.
There are a number of exceptions to the hearsay rule contained within the Act. One of them concerns admissions, and is contained within s 81, a provision also concerning the opinion rule.
Section 81 of the Act provides that the hearsay rule does not apply to evidence of an admission.
‘Admission’ is defined in the Dictionary to the Act, as follows:
admission means a previous representation that is—
(a)made by a person who is or becomes a party to a proceeding (including an accused in a criminal proceeding); and
(b)adverse to the person's interest in the outcome of the proceeding;
Section 135 of the Act sets out what is described as a general discretion to excluded evidence. It provides:
The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might—
(a) be unfairly prejudicial to a party; or
(b) be misleading or confusing; or
(c) cause or result in undue waste of time; or
(d)unnecessarily demean the deceased in a criminal proceeding for a homicide offence.
Section 137 of the Act provides:
In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused.
This provision does not contain a discretion. Rather, it requires a court, as a matter of law, to refuse to admit evidence if its probative value is outweighed by the danger of unfair prejudice.
The law governing the use of evidence of incriminating conduct is contained within Division 1 of Part 4 of the Jury Directions Act 2015. The following definitions are set out in s 18:
In this Division—
conduct means the telling of a lie by the accused, or any other act or omission of the accused, which occurs after the event or events alleged to constitute an offence charged;
incriminating conduct means conduct that amounts to an implied admission by the accused—
(a)of having committed an offence charged or an element of an offence charged; or
(b) which negates a defence to an offence charged;
offence charged includes any alternative offence.
Section 20 of the Act provides:
(1)The prosecution must not rely on evidence of conduct as evidence of incriminating conduct unless—
(a)the prosecution has given notice in accordance with section 19; and
(b)the trial judge determines that, on the basis of the evidence as a whole, the evidence of conduct is reasonably capable of being viewed by the jury as evidence of incriminating conduct.
(2)Subsection (1) applies even if the evidence of conduct may be admissible for another purpose.
Analysis
The refusal by the Crown to call a witness
At the heart of the submissions of Mr Desmond in respect of the evidence of Alay is the contention that if, as the statement of Esber would tend to indicate, the accused made the claim to Alay on the day of the shootings that Ali was responsible for both of them, this would be admissible evidence in the trial. That central proposition is one which I cannot accept.
The purported statement would principally be sought to be relied upon by the defence as evidence of the fact that Ali did, indeed, shoot both Hassan and himself. As I see it, that means that the evidence would fall foul of the hearsay rule. Unless the evidence can be considered to come within one of the exceptions to the rule, it is inadmissible. The only exception raised before the Court is that contained within s 81(1).
Mr Desmond submitted, quite late in the piece, that the statement should be considered to be an admission because it constituted an admission of being present at the crime scene. However, to my mind, bearing in mind the definition of ‘admission’ set out in the Dictionary, it would be stretching the language considerably to find that this statement was ‘adverse to the person’s interest in the outcome of the proceeding’. Far from it. It was an exculpatory statement, indicating no involvement by the accused in the shooting of either Hasan or Ali. The statement would not be capable of amounting to an admission of presence at the crime scene in any real sense, much less, of involvement in any aspect of the offending. Mr Gibson described the statement as being ‘a pure self-serving statement’.[15] I think that is correct.
[15]Transcript 44.
The main basis on which Mr Desmond argued the admissibility of the purported representation of the accused to Alay was not reliant upon a conclusion that the statement would come under the umbrella of the admission exception to the hearsay rule. Mr Desmond submitted that even if it was hearsay, the statement should go in as a matter of fairness in accordance with what he described as having been the practice in Victoria for the prosecution to lead evidence of denials of guilt by accused persons, whether to police or others.
I think these submissions somewhat overstated the practice. There is a rule or practice, consistent with the authorities, that when an accused person has made statements to the police that are a mixture of incriminating and exculpatory material, the Crown should lead all of the material, and not seek to excise the exculpatory portions. Indeed, this has been considered to be an exception to the hearsay rule.[16]
[16]See, for example, The Queen v Barrett [2007] VSCA 95 per Eames J at [100] (‘Barrett’).
Going further still, it has also been the practice in this state for the Crown to lead evidence of entirely exculpatory statements made by accused persons in police interview, even where the exculpatory material has not been accompanied by any admissions against interest. That practice, as the following consideration of the law would suggest, may not be easy to justify on purely legal grounds. Nonetheless, it has routinely been followed over many years.
In Spence v Dimasi,[17] Cox J, after reviewing the authorities, said:
The rule against hearsay evidence usually operates to prevent a party from tendering his self-serving statement made out of court in proof of the truth of the matters so asserted. The problem comes with mixed statements, tendered by an opponent, containing admissions against the party making them and also exculpatory statements, whether relating to the admissions or on other relevant topics. The position in the criminal court, I think, is clear. It is common for the Crown to tender a record of the accused's interrogation by the police, and often this will contain a mixture of admissions and self-serving statements. The Crown cannot pick and choose. It cannot put in only the damaging questions and answers, or have the admissions treated as evidence and the rest rejected or ignored as hearsay. The whole interrogation (or narrative statement, as the case may be) goes before the jury and it is for them to decide what parts, if any, they will act upon in reaching their verdict.
[17](1988) 48 SASR 536.
In R v Su and Ors,[18] the Court of Appeal considered a number of the authorities dealing with the evidential status of self-serving, non-incriminating statements, tendered as part of the Crown case, including Spence v Dimasi. The Court observed:
The Crown has an obligation to put the whole statement before the jury, for its use, giving the statements such weight as it believes they deserve.[19]
[18][1997] 1 VR 1 (‘Su’).
[19]Ibid 65.
As for the rationale behind the rule, the Court in Su noted:
…the evidence which the applicant desired to put before the jury by way of cross-examination of a police officer was in the nature of ‘self serving statements’ which had been made to that officer by the applicant during the course of his interview. Such material is traditionally led by the Crown, whether incriminating or not, both as a matter of fairness and to show the ‘first opportunity’ response by the accused to the allegations made against him by his accuser.[20]
[20]Ibid 64.
In The Queen v Rudd,[21] Redlich JA, in whose judgment the other members of the Court of Appeal agreed, stated:
Ordinarily, a statement which is purely exculpatory or self-serving is not evidence of the truth of its contents and is not admissible. The clear exception is usually expressed as follows. A self-serving statement will be admissible where it forms part of a mixed statement made before the accused is charged, which contains both inculpatory and exculpatory passages. Hence, where one party puts in evidence a statement made by the other, the whole of the statement, including self-serving parts, becomes evidence of the truth of what was stated. The genesis of the exception is the essential notion of ‘fair play’. The exception is identified in Cross as being that ‘when an admission is read, everything ought to be read which is fairly connected with that admission’. Thus a statement of the accused placed in evidence by the Crown becomes evidence for the accused as well as against him. The accused is not confined to passages of his statement that qualify or explain the admissions upon which the Crown relies.[22]
[21][2009] VSCA 213.
[22]Ibid [43] (citations omitted).
In Barrett, a case which relevantly concerned not a question of the admissibility of exculpatory statements made to a member of the police force, but rather, the admissibility of exculpatory statements made by the accused to a medical practitioner, Eames J pointed out:
Although the “mixed statement” exception has generally been applied to statements made by an accused in the course of an interview with police, the notion of fairness which motivates the exception to the hearsay rule has equal application in situations where the prosecutor seeks to cross-examine an accused person in order to elicit inculpatory statements but wishes not to elicit qualifying statements made at the same time. The approach taken by courts in that situation has been long understood.[23]
[23]Barrett [103].
In my view, the supposed out-of-court statement of the accused to Alay would not be admissible under the principle the subject of consideration above. Accepting for the purposes of the submissions made by Mr Desmond that the principle extends to statements made to someone other than a member of the police force, which seems to be so, it could not be said to extend to a self-serving statement, unaccompanied by any admission against interest, made to a friend in the aftermath of the event the subject of the proceeding. No principle of fairness could require, or permit, the admission of that evidence.
That being so, the submissions of Mr Desmond fell away, and I do not strictly need to express a concluded view on other aspects of them. It may, however, be of assistance if I do make some observations.
There would, in any event, have been no call for me to suggest or indicate that the police should make further enquiries of Alay. They have already done so. When speaking to the police, not once but twice, Alay did not say anything to suggest that the accused told him about the circumstances of the shooting. Having failed to provide such information, he declined to make a second statement, as was his right. There is no reason to suppose he would now say anything different. If he did, it would strengthen the suspicion which might arise that he was in the camp of the accused.
As to permitting or requiring a s 198B hearing, or any other form of hearing, with the witness Alay, the defence had the opportunity, should they have sought to pursue it, of seeking leave to cross-examine Alay at the committal. That opportunity was not taken, and nor was any question asked of the informant on the matter of the statement supposedly made by the accused to Alay. There would have been sufficient material available for the Court to make a decision as to admissibility of this evidence without Alay being called before me. The terms of s 198B would represent a substantial barrier to the witness being required or permitted to be called.
Furthermore, even had I concluded that the purported statement of the accused might be led on the basis of the principle of fairness relied upon by Mr Desmond, the witness Alay would be far removed from the type of witness countenanced in the authorities including Apostilides, and I very much doubt that it would have been appropriate for me to require Mr Gibson to justify or explain the decision he had made not to call the witness, much less require such an unimportant witness to be made available for cross-examination at the trial.
In any event, in light of my determination as to the status of the anticipated evidence, it is clear that the decision of the prosecutor not to call the witness cannot be impugned.
Incriminating conduct evidence
As a preliminary matter, I note that during the course of the hearing, I was informed by Mr Hayward that the witness El Hussein contacted the informant on 29 October 2020 and retracted her previous account of the accused having threatened to harm her after she drove him from the scene. Mr Hayward informed the Court that if, at trial, the witness maintained this position, the prosecution would seek leave pursuant to s 38 of the Act to cross-examine her. He indicated that the prosecution would not open this evidence to the jury. A final decision as to the admissibility of the evidence of El Hussein as evidence of incriminating conduct will need to await developments at the trial.
In my view, the approach taken by the Crown of seeking to rely on the asserted incriminating conduct evidence as going towards proof of only one element of the crimes with which the accused is charged does not suffer the deficits and pitfalls asserted by Mr Desmond. I do not believe that in seeking to have the evidence used in the way sought, the Crown was seeking to ‘cloud reasoning’ or elevate the importance of the evidence as asserted by Mr Desmond. Rather, the prosecution was seeking to isolate particular conduct of the accused in the immediate aftermath of the shootings, and have a jury rely on that conduct in a logical and permissible way to strengthen the prosecution case that the person responsible for the shootings was the accused. To my mind, there was nothing vague or lacking in particularity about the evidence. The prosecution clearly spelt out the evidence sought to be relied on, and the way in which it was sought to have the evidence used. It would be but a part of the overall evidence relied upon in the prosecution case in proof of the central matter in contention, namely, the identity of the person who shot the two deceased.
I accepted the submissions of Mr Hayward in respect of the proposition that all of the challenged evidence was reasonably capable of being viewed by a jury as evidence of incriminating conduct. I believe it would be reasonably open to a jury to conclude that the accused’s conduct in question could only be explained by his having had the knowledge that he was the shooter of the two deceased.
The value or worth of the impugned evidence, of course, must be assessed in the context of the overall evidence in the case. The disposal of the gloves and shotgun in the drain occurred shortly after two men had been shot with a shotgun. The accused had fled the immediate scene of the shooting, wheeling the mortally wounded Ali in a shopping trolley to the secondary location in Morris Court. The disposal by the accused[24] of the items in the drain at that location, as his friend Ali lay dying, was very particular conduct, at an important location, at a critical time. It was, a jury may conclude, considered, rational conduct designed to secrete those important items and to distance the accused from the crimes. A jury may consider it to be telling that in that situation of great stress and no doubt anguish, as Ali lay dying, the accused engaged in that conduct.
[24]As a jury would be entitled to conclude.
The same can be said of the conduct of the accused in summoning a car to Morris Court and prevailing upon a person whom he had never met before to drive him away from the location. When he did so, he was aware that he was abandoning his stricken friend, which may be considered to illustrate the importance to him of removing himself from the location where he would undoubtedly come into conduct with the police. He had the presence of mind to take the shotgun with him, a jury might infer.
There may, of course, be other available explanations for the conduct of the accused other than his knowledge that he was the shooter. Mr Desmond pointed, as one example, to the prospect of his having acted out of panic, in spite of being an innocent person insofar as the murders were concerned. The availability of such an alternative explanation does not mean that the evidence would not meet the requirement of s 20(1)(b) of the Jury Directions Act 2015. There may be cases where a competing innocent explanation for conduct is such that a judge called upon to decide whether it would be reasonably open to a jury to conclude that the conduct in question could only be explained by the accused’s having had the relevant belief as to his own guilt would feel moved to decide that question in the negative.
This is not such a case. In my view, it would be perfectly open to a jury to conclude that the only explanation for the accused’s conduct was his knowledge of having shot the two men, and a desire to avoid apprehension for those events.
In those circumstances, no call for the consideration of ss 135 and 137 arose. I ruled that the evidence in question passed the test for admissibility in s 20 of the Jury Directions Act 2015.