Regina v Abdulkader and Hohaia [No 1]

[2006] NSWSC 198

CITATION:	Regina v Abdulkader & Hohaia [No 1] [2006] NSWSC 198
HEARING DATE(S):	15-17/02/06 20-24/02/06 27-28/02/06 01-03/03/06 06-09/03/06 14-17/03/06 20-21/03/06
JUDGMENT DATE :	29 March 2006
JURISDICTION:	Common Law Division Criminal List
JUDGMENT OF:	Kirby J
DECISION:	Leave to tender statement refused.
CATCHWORDS:	Criminal Practice & Procedure - Application under s108(3) Evidence Act 1995 - cross examination of witness in support of alibi by Crown - implication that reconstruction or evidence the result of suggestion - application for leave s108(3) Evidence Act to tender prior consistent evidence - whether statement addresses credibility attack - whether leave under s192(2) should be given.
LEGISLATION CITED:	Evidence Act 1995
CASES CITED:	Graham v The Queen (1998) 195 CLR 606 DBG (2002) 133 A Crim R 227 BD (1997) 94 A Crim R 131
PARTIES:	Regina Mostafa Abdulkader John Hohaia
FILE NUMBER(S):	SC 2005/1091; 2005/1092
COUNSEL:	T R Hoyle SC (Crown) G Scragg (Abdulkader) P McGrath (Hohaia)
SOLICITORS:	R McMurtrie - DPP (Crown) Murphy's Lawyers G R Adler - LAC

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

JUSTICE DAVID KIRBY

Wednesday 29 March 2006

2005/1091 REGINA v Mostafa ABDULKADER
2005/1092 REGINA v John HOHAIA

JUDGMENT [No 1] - Application by Mostafa Abdulkader under s108(3) of the Evidence Act 1995

1 KIRBY J: During the course of a trial for murder, application was made on behalf of Mostafa Abdulkader, one of the accused, for leave under s108(3) of the Evidence Act 1995 ("the Act") to tender a statement of a witness, Robert Dibb. After argument, I made a ruling, refusing leave. I stated that I would give my reasons later. I now set out those reasons.

The Trial.

2 Mostafa Abdulkader and John Hohaia were jointly indicted for the murder of Alexander Szirt at Belmore on 3 December 2003. On the evening of 2 December 2003 at about 10.30 pm, Alexander Szirt went to premises known as 52 Lucerne Street, Lakemba, the home of John Hohaia's mother. At some time after 1.35 am the following morning, 3 December 2003, he was brutally assaulted. He was then bundled into the back seat of the vehicle which he had driven to 52 Lucerne Street, either unconscious or already dead. The vehicle was then driven by one or other of the accused to Wiley Park. It was observed at Wiley Park at 5.15 am. Mr Szirt's body was ultimately discovered by passers-by at about 3.00 pm. The police were called and an investigation into his murder began.

3 The issue arose after the Crown had completed its case. Before the trial began, notice was given on behalf of Mr Abdulkader that he would rely upon an alibi (Exhibit U). Mr Abdulkader gave evidence in which he raised alibi. He acknowledged that he had been at 52 Lucerne Street on the evening of 2 December 2003 and had been introduced to Alexander Szirt. However, he said he left the premises at approximately 12.15 am, before any violence. He then walked to Haldon Street Lakemba where he worked in Moussa's Bakery. He began work at 1.10 am. On his way to work he saw a friend, Robert Dibb, at about 1.00 am. Mr Dibb was driving a vehicle in Haldon Street, Lakemba. Mr Dibb stopped the vehicle and they spoke. Indeed, he was offered a lift to work. However, he declined that offer, saying that the bakery was only a short distance away.

4 The deceased was certainly alive at 1.35 am. His father, Mr Bella Szirt, telephoned him at approximately that time on his mobile phone. There is also credible evidence that the deceased was alive at 3.30 am and relatively unharmed.

The Evidence of Robert Dibb.

5 Robert Dibb has given evidence that he was at home on the evening of Tuesday 2 December 2003. He decided at about midnight to get something to eat. He then drove to a 7/11 store in Canterbury Road, taking a direct route. He made his purchase, which he then ate in the carpark. Some time between 12.30 am and 1.00 am he began the journey home. He chose a different route for no particular reason. His return journey took him down Haldon Street, Lakemba, past Moussa's Bakery. He saw Mr Abdulkader walking towards the bakery in Haldon Street. He stopped and talked. Mr Abdulkader gave the appearance of someone who had been drinking. He said that he had been at a party. They chatted for a time before Mr Dibb drove off.

6 The Alibi Notice nominated Mr Dibb as a witness. Having been served with the notice, the police endeavoured to interview Mr Dibb. He declined their request. When cross examined by the Crown, Mr Dibb was asked the following: (T 845/6)

"Q. Why didn't you want to speak to the police?
A. Because I already made a statement.
Q. You hadn't made a statement to the police?
A. No.
Q. They didn't know what was in your statement?
A. I don't know.
Q. You think by giving them a copy of your statement, they might have been able to check what was recorded in your statement to verify to see if it was true or not?
A. I don't know."

7 Mr Dibb said the statement had been made to a solicitor on 29 July 2004 (T 842). The Crown did not call for the statement. Nor did it enquire whether Mr Dibb had used the statement for the purposes of refreshing his memory, and thereby seek access to it. There was therefore no cross examination on the statement.

8 In the course of his evidence, Mr Dibb described the circumstances in which he became aware of the arrest of Mr Abdulkader. He said this: (T 841)

"SCRAGG: Q. Did you become aware that Mostafa Abdulkader had been charged in connection with the death of Alex Szirt or he had been charged in relation to the death of a person; did you become aware of that?
A. Yes I did.
Q. When did you become aware of that?
A. Roughly about a week later.
Q. A week after what?
A. After I had seen him.
Q. Do you remember how you became aware of that?
A. Yes, I read it in The Torch."

9 The Torch is a newspaper which circulates in the Lakemba area, which is published weekly on a Wednesday. Alexander Szirt died in the early hours of Wednesday 3 December 2003. Mr Abdulkader was arrested on the late afternoon of Wednesday 10 December 2003. It follows, as Mr Dibb acknowledged, that the edition reporting the arrest of Mr Abdulkader must have been published on Wednesday 17 December 2003.

10 The Crown, in these circumstances, sought to understand, first, how Mr Dibb was able to say on 17 December 2003 that he had seen Mr Abdulkader on Wednesday 3 December, and secondly, how he knew that the sighting of Mr Abdulkader, whenever it took place, was at a time relevant to the charge against Mr Abdulkader, that is, the time that the deceased had been assaulted and died. In other words, how did he know when Alexander Szirt had died?

11 As to the first issue, Mr Dibb said he just remembered (T 851). He was not working at the time. He was living with his parents. He was asked: (T 851/2)

"Q. How did you fill your time in?
A. Just normal stuff.
Q. What distinguished one day to the next in your life in December 2003?
A. What do you mean, as in December 2003?
Q. What were you doing; how did you spend your time?
A. At home.
Q. What would you do at home?
A. Sit on the computer, sit around the house.
Q. Watch TV?
A. Watch TV.
Q. Have friends over?
A. No.
Q. Go to friend's places?
A. Yes.
Q. This would not have been the first time that you had been to the Seven-Eleven store?
A. No."

12 When pressed further by the Crown (T 853) how he was able to fix Wednesday 3 December as the day he saw the accused, Mr Dibb simply said he "knew, he remembered" that day because the date appeared on his computer screen (T 853).

13 Passing to the second issue (how did Mr Dibb know when Alexander Szirt was assaulted and had died?), the Crown put the following questions to Mr Dibb in cross examination: (T 863/4)

"Q. Did somebody tell you it was Wednesday 3 December that it was alleged that he was at a house where the deceased had died?
A. No.
Q. Did the solicitor ever explain that to you?
A. No he didn't.
Q. But you couldn't possibly be mistaken you say?
A. No.
Q. And you regard yourself as a close friend of the accused, do you?
A. Just to say hello to him, just to see him occasionally.
Q. Friends of his father?
A. No.
Q. Did his father ever pay you any expenses to go to the solicitor?
A. No.
Q. None at all?
A. No."

The Applicant's Submission.

14 Upon the basis of this material, the applicant sought leave under s108(3) of the Act to tender the statement made by Mr Dibb to the solicitor on 29 June 2004. The statement began with these words (MFI 33):

"1. On Wednesday 3 December 2003, at approximately 12.00 midnight I was at my house at 53 Barremma Road, Lakemba."

15 The remainder of the statement simply described, in terms similar to Mr Dibb's evidence, his visit to the 7/11 restaurant at midnight, the journey to Haldon Street, Lakemba, the sighting of Mr Abdulkader and their conversation.

16 Mr Scragg of counsel for Mr Abdulkader relied upon s108(3)(b). It is convenient to set out the entire section which is in these terms:

"s108(1) The credibility rule does not apply to evidence adduced in re-examination of a witness.
(2) (Repealed).
(3) The credibility rule does not apply to evidence of a prior consistent statement of a witness if:
(a) evidence of a prior inconsistent statement of the witness has been admitted, or
(b) it is or will be suggested (either expressly or by implication) that evidence given by the witness has been fabricated or re-constructed (whether deliberately or otherwise) or is the result of a suggestion,
and the court gives leave to adduce the evidence of the prior consistent statement."

17 Since leave is required, s192 is also relevant and is as follows:

"s192(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."

18 Mr Scragg acknowledged that the Crown had not suggested fabrication. The Crown had, or would, in final address, suggest that Mr Dibb had either identified the date (3 December 2003) as a result of suggestion, or that his evidence was the product of reconstruction.

19 The words of s108(3)(b) are very broad, extending beyond the questions asked of the witness, to implications arising from such questions. Here it was not put, in terms, that the recollection of Mr Dibb was either the result of suggestion or the product of reconstruction. Nonetheless, that is the implication. The Crown will undoubtedly ask the jury to infer mistake by Mr Dibb, either as the result of suggestion or reconstruction. The words of s108(3)(b) are therefore satisfied. The issue arises whether leave should be given.

20 In Graham v The Queen (1998) 195 CLR 606, Gaudron, Gummow and Hayne JJ identified two important issues in the exercise of the discretion under s108(3). Their Honours' said this: (para [8])

"[8] In exercising the discretion under s108(3) to permit the adducing of evidence of a prior consistent statement, it is important to bear two matters in mind. First, s108 creates an exception to the 'credibility rule' - the rule that evidence that is relevant only to a witness's credibility is not admissible (s102). Second, it is important to identify how the evidence relates to the statutory premise for its admission. Whether, if admissible, the complaint becomes evidence of the truth of what is asserted is not relevant to the exercise of the discretion to give leave under s108. The exercise of the discretion under s108 depends upon the effect of the evidence on the witness's credibility: here, the suggestion of fabrication."
(emphasis in original)

21 Dealing with the first issue, Howie J made the following observations in DBG (2002) 133 A Crim R 227: (at 241)

"... Further the evidence is not being admitted in order to show consistent conduct on the part of the complainant following the incident alleged in the complaint but rather to restore the complainant's credit that has been impugned either by proof that the witness has made a statement inconsistent with the evidence now being given or an allegation that the evidence that is being given is a fabrication, reconstruction or the result of suggestion."

22 The second issue in Graham concerns the importance of identifying the statutory basis for admission and the capacity of the material to address that issue. Gaudron, Gummow and Hayne JJ dealt with that issue, in the context of the case before them, as follows: (para [9])

"[9] How does the making of a complaint six years after the events bear upon that question? Unless the making of the complaint can be said to assist the resolution of that question, the evidence of complaint is not important (cf s192(2)(c)) and would do nothing except add to the length of the hearing (cf s192(2)(a)). And in this case, it is by no means clear that the making of a complaint six years after the event does assist in deciding whether the complainant had fabricated her evidence. Although trial counsel for the appellant suggested to the complainant, by his last question in cross examination, that she was 'making it all up' the allegation of fabrication of evidence did not loom large in the trial. No question was put, and no answer was given, from which the time of alleged fabrication could be identified. The complaint having been made in 1994, and it having led at once to the start of police investigations, it may be doubted that a jury could gain assistance from its making in deciding whether the complainant had fabricated her story."

23 Hunt CJ at CL spoke of the same issue in BD (1997) 94 A Crim R 131 in these words: (at 141)

"... However, the ability of the prior consistent statement to answer the suggestion must remain a matter to be considered in determining whether leave is to be granted."

24 Here, the implication arising from cross examination was that Mr Dibb's description of having seen Mr Abdudlkader on Wednesday 3 December 2003 between 12.30 and 1.00 am was the result of suggestion or reconstruction. How does the making of a statement seven months after the event, in terms which simply repeat the assertion that he saw Mostafa Abdulkader on Wednesday 3 December 2003, assist in determining whether his evidence was the product of reconstruction or suggestion? In my view it does not. The other material in the statement (that is, apart from the date in paragraph 1) was not the subject of challenge or serious challenge by the Crown, such as to raise an issue of credibility concerning Mr Dibb. As to the date, the statement does not add to the evidence given by Mr Dibb himself. It does not enlarge upon his thought processes as to how he knew, some weeks after the event, that the date he had seen Mr Abdulkader was Wednesday 3 December 2003, or how he appreciated that his sighting of Mr Abdulkader was relevant to the charge which he faced (which involved an appreciation of the timing of the assault causing death). The statement does no more than the jury would infer having heard Mr Dibb's evidence, namely, that he had told the solicitor on 29 July 2004 that he saw Mostafa Abdulkader on Wednesday 3 December 2003 between 12.30 and 1.00 am. I doubt whether the jury would get any assistance from the statement in determining whether in fact Mr Dibb had arrived at the date by a process of reconstruction or suggestion.

25 Addressing the issues under s192(2), the evidence, were it admitted, may lengthen the hearing, although not by much. The Crown has foreshadowed that, were leave given and the statement admitted, it may seek leave to further cross examine Mr Dibb upon that statement (s192(2)(a)). No particular unfairness attaches to either party (s192(2)(b)). For the same reasons as given in Graham, that is, because the statement really does not address the credibility attack, nor assist in resolving the issue of reconstruction or suggestion, I do not regard the evidence as important (s192(2)(c)). The evidence, of course, is tendered in the course of a murder trial (s192(2)(d)). Section 192(2)(e) does not arise.

26 For these reasons I refused leave to tender the statement of Mr Dibb in re-examination.

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