Regina v L Cassar; Regina v E Sleiman; Regina v H Kalache (Judgment No 12)

[1999] NSWSC 352

CITATION:	Regina v L Cassar; Regina v E Sleiman; Regina v H Kalache (Judgment No 12) [1999] NSWSC 352
CURRENT JURISDICTION:	Criminal Division
FILE NUMBER(S):	70036/98; 70216/98; 70217/98
HEARING DATE(S):	13 April 1999; 14 April 1999
JUDGMENT DATE:	15 April 1999
PARTIES :	Regina v Leanne Cassar; Regina v Emad Sleiman; R v Hassan Kalache
JUDGMENT OF:	Sperling J

COUNSEL :	For Crown: M L Barr For Accused Leanne Cassar: D N Stewart For Accused Emad Sleiman: K G Horler AM QC For Accused Hassan Kalache: B T Stratton QC
SOLICITORS:	For Crown: F Gates (DPP NSW) For Accused Leanne Cassar: John Bettens & Co For Accused Emad Sleiman: Ross Hill & Associates For Accused Hassan Kalache: Trevor Nyman & Company
CATCHWORDS:	CRIMINAL LAW - evidence - admissibility of evidence going only to credit, pursuant to Evidence Act, s 108(1) and (3)(a) and (b)
ACTS CITED:	Evidence Act 1995, ss 55, 102, 108 and 192
CASES CITED:	BD (1997) 94 A Crim R 131; DJT [1999] NSWCCA 22; Foley (CCA NSW, 5 June 1996, unreported); Gillard [1999] NSWCCA 21; Graham (1998) 72 ALJR 1491; Hall (CCA NSW, 28 February 1997, unreported); McLean v The Commonwealth of Australia (Sperling J, 27 June 1996, unreported).
DECISION:	Evidence allowed.

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

SPERLING J

Thursday, 15 April 1999

70329/98 - REGINA v HASSAM KALACHE
70216/98 - REGINA v EMAD SLEIMAN
70036/98 - REGINA v LEANNE CASSAR

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JUDGMENT 12 (On admissibility of material in statement of Sgt Buckley)

HIS HONOUR:
1 Mr Stacey has given evidence of having seen the accused, Mr Kalache, push the deceased and the accused Mr Sleiman then having lunged at the deceased, consistently with stabbing him. He has also given evidence of having heard the deceased shortly thereafter saying that it was Mr Kalache who had done it. It was brought out in cross-examination that when interviewed by the police immediately following the event, Mr Stacey said nothing about that and gave an account conveying that he had neither seen nor heard anything of the kind. It was further brought out in cross-examination that it was only some seven months later, on 20 December 1997, that the witness gave the police the account of events which he has given in evidence here.
2 The witness's explanation, of which the accused were on notice by the service of statements, is that he was put in fear of his own life and that of his family, by things that happened immediately following the stabbing and continued to happen thereafter. Those incidents were traversed, to some extent, in cross-examination with a view to casting doubt on the witness's contention that he was truly put in fear of telling the police what he asserted to be the truth. I allowed re-examination over objection of the accused as to the detail of certain of the incidents on which the Crown wished to rely and as to the effect which the witness said the incidents had on him.
3 The evidence now sought to be led is evidence of conversations between Mr Stacey and Sgt Buckley on 6 December 1997 and 13 December 1997. The evidence is contained in a statement by Sgt Buckley dated 15 March 1999, Exhibit P on the voir dire.
4 For the reasons which follow, it would not matter whether the evidence were given by Mr Stacey, Sgt Buckley or both. It is convenient, however’ to note the proposed evidence as it appears in Sgt Buckley's statement:
"3. I am a member of the Parramatta Golf Club and have been so for the past 10 years. In December, 1997 I knew of another member, Adam Stacey. I also had dealings with Adam in my role as a Police Officer attached to Parramatta Police Station. At that time Adam was a security supervisor at the General Bourke Hotel, Parramatta. I had a good rapport with Adam and his staff.

4. I remember, on Saturday, 6 December, 1997 Adam Stacey approached me in the club house of the Parramatta Golf Club. He said, 'Buck' (my nickname), 'can I see you for a minute?' I said, 'Adam, I have to leave, I'm in a hurry to get home. Is it important?' He said, 'Fuckin' oath it is, I've got huge dramas.' I said, 'Mate, I'm really sorry but can it wait to next Saturday? I'll be here the same time.' He said, 'OK, I'll see you for sure.' I said, 'No worries.' I left the premises.
5. The following Saturday, 13 December 1997, I again saw Adam at the Golf Club We went to a table and sat down. I said, 'How can I help you?' He said, 'Buck, I can't handle it any more. They're giving me heaps.' I interrupted and said, 'Hold on mate, what are we talking about?' He said, 'The Burton murder. The Lebs won't let me alone. Everywhere I go, they're there. I go shopping with the missus in Westfield, they follow me. They threaten me. They hassle me. I'm worried about the family, mate.'

6. I said, 'Why? Why are they doing this?' He said, 'Because of what I know. What I saw.' I said, 'What did you see?' He said, after a long pause, 'If I give them up I'm a dead man. You gotta understand, they mean business.' I said, 'Look Adam, if you want me to help you, you've got to be straight down the line with me. If you saw the murder, you've got a public duty to come forward. If that's the case, we can help you. We have systems in place to protect you and your family. Nobody will get to you.' He said, 'Buck, I saw the lot. I was in the beer garden out the back and saw the lot.' I said, 'I won't discuss the matter any more with you. That's for the detectives to sort out. I'll organise a meeting between Steve Morrisby and you. I'm back at work next week. Leave it with me.' The conversation concluded.

7. I had known Adam Stacey for some considerable time. I had seen him in his work at the General Bourke Hotel. He has always appeared to me to be a sensible, laid-back person, not phased by pressure or stressful situations. I have seen him in potentially violent situations outside the hotel dealing with intoxicated and violent people. He impressed me by the way he took charge of the situation, the way he dealt and spoke with unruly persons and the way he appeared to control his emotions.

8. However, when speaking with him at the Golf Club, I noticed him to be on edge, nervous and fidgety. His demeanour was totally in opposition to the behaviour I have previously described."

5 The whole of that evidence is objected to.
6 The proposed evidence includes the following elements or themes:
(a) A social association between Mr Stacey and Sgt Buckley.
(b) Mr Stacey's wish to speak to Sgt Buckley urgently.

(c) Mr Stacey's anxiety over what he regarded as harassment related to the murder.
(d) Mr Stacey's belief that if he told the police what he said he saw, he would be killed.
(e) The implication that Mr Stacey was looking to Sgt Buckley for guidance.
(f) Sgt Buckley's advice to come forward and his assurance that Mr Stacey would be protected if he did.
(g) Mr Stacey's statement to Sgt Buckley that he had seen the murder from the beer garden.

7 There are broadly two categories in this evidence, although they overlap considerably. First, there is the statement by Mr Stacey to Sgt Buckley that Mr Stacey saw the murder from the beer garden and the context in which that statement was made to Sgt Buckley. That evidence is proffered as a prior consistent statement tending to rebut the attack on the credit of the witness in his assertion as to what he allegedly saw.
8 The second category is evidence of Mr Stacey's fear of telling what he saw and heard, as a result of the harassing incidents to which he referred, and as to how Mr Stacey came to tell the police what had occurred, notwithstanding. That evidence is proffered as evidence explaining the delay of seven months which is relied upon by the accused as discrediting the witness' account of events given at that later time and in his evidence here.
9 The evidence in the first category, that is, the statement by the witness to Sgt Buckley that he had seen the murder from the beer garden, is admissible. It is relevant and therefore admissible, unless otherwise inadmissible, (Evidence Act 1995, ss 55 and 56) because it tends to support the credit of a witness which has been impugned. The credibility rule (s 102) operates to exclude the evidence, subject to specified exceptions. The exception in section 108(3) applies for the reasons which follow.
10 Section 108(3) provides:
"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 reconstructed (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."

11 Paragraph (a) of subs (3) is attracted because it was adduced from Mr Stacey in cross-examination that he had made a statement immediately after the event which was inconsistent with his evidence in chief as to what he allegedly saw and heard. Paragraph (b) of the subsection is attracted because fabrication of the evidence in chief has been suggested.
12 That raises the question of leave and I take leave to have been sought. Section 192 provides as follows:
"192. (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."

13 In Graham (1998) 72 ALJR 1491, it was a ground of appeal that the trial judge erred in admitting evidence of a statement by the complainant in a sexual assault case. The statement was made six years after the last of the acts alleged. It was made in conversation with a flatmate when discussing boyfriends. Leave had not been sought pursuant to s 192. The trial judge was not directed to the requirement for leave.
14 In the judgment of Gaudron, Gummow and Hayne JJ, the reasoning proceeded on the basis of the statement was admissible pursuant to section 108(3)(b) subject to the question of leave. Leave was held not to have been inevitable had it been sought. The appellant might, therefore, have lost a significant chance of acquittal. It followed that the appeal should be allowed. Callinan J, with whom Gleeson CJ agreed, also said that leave would not inevitably have been given. They allowed the appeal on this and other grounds.
15 Some guidance as to how s 192 could be applied in such a case may be obtained from the following dicta in the judgment of Gaudron, Gummow and Hayne JJ (at 1493):
"The exercise of the discretion under s 108 depends upon the effect of the evidence on the witness's credibility: here, the suggestion of fabrication.

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 s 192(2)(c)) and would do nothing except add to the length of the hearing (cf 192(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. . . . . . . . . . . . . . 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."

16 The gist of this passage is that a late statement which is merely an assertion of what is then given by the witness in evidence has low probative value. It is unlikely to assist in resolving whether what the witness says in his or her evidence is true. Leave might be refused on that account.
17 That evidence may be adduced of statements before action pursuant to s 108(3) of the Evidence Act1995 in appropriate circumstances in sexual assault cases cannot be doubted: see Hall (CCA NSW, 28 February 1997, unreported), Foley (CCA NSW, 5 June 1996, unreported), BD (1997) 94 A Crim R 131, DJT [1999] NSWCCA 22 and Gillard and Gillard [1999] NSWCCA 21. All that is really established by the dicta in Graham, to which I have referred, is that leave is likely to be refused where the statement is merely an assertion of what is then reasserted in evidence. Mere repetition does not make the story unlikely to have been fabricated. The prior statement may not then be "important" (see s 192(2)(c)).
18 I would interpolate here a comment about the ordinary case of a police statement in criminal proceedings or a proof of evidence in civil proceedings. Such a prior consistent statement would ordinarily be so devoid of value in answering an earlier inconsistent statement or in answering a suggestion of fabrication as not to be arguably probative at all. It would then not be “relevant”, and would not be admissible on that account. One would not come to the application of the credibility rule in such a case, let alone the exceptions to it. The evidence would be inadmissible at the anterior threshold of relevance.
19 The proposed evidence in the present instance is not mere prior assertion of what was later said in evidence by the witness. There is the context in which the statement was made to Sgt Buckley. It would be open to a jury to accept that this was a statement made by a man, fearful of telling what he knew but looking for a way to do so. A statement made in that context would have a probative value beyond mere assertion, in advance, of what was later said in evidence. It could rebut the suggestion of fabrication.
20 I have taken into account the considerations mentioned in s 192(2). Having regard to the likely overall length of the trial, the evidence in Sgt Buckley’s statement would not add unduly to the length of the hearing. I do not apprehend unfairness to the accused in admitting the evidence. The evidence is important for the reasons I have mentioned. In the exercise of my discretion I grant leave pursuant to s 108(3).
21 I come then to the second category of evidence. That is the evidence as to how Mr Stacey came to tell the police what he says he saw and heard, notwithstanding his fear if he did so, proffered as an explanation for the delay of seven months in doing so. It is, if accepted, the resolution of a dilemma which had existed for that period of time, activated by an approach to Sgt Buckley for guidance and the advice and assurance that Sgt Buckley gave.
22 The evidence is admissible in re-examination, whether adduced from Mr Stacey, from Sgt Buckley or from both. Evidence which explains adverse evidence, adduced in cross-examination, is admissible in re-examination whether adduced from the witness or from some other source: McLean v The Commonwealth of Australia (Sperling J, 27 June 1996, unreported). It does not matter that the evidence goes only to the credit of the witness, as this does. Evidence in re-examination is an exception to the credibility rule: s 108(1).
23 It is submitted by counsel for Ms Cassar that I should not allow the evidence because of the provisions of s 135(b), namely, that the probative value of the evidence is substantially outweighed by the danger that the evidence might be misleading or confusing. It was observed in this submission that the conversations with Sgt Buckley occurred only a week or so before Mr Stacey making the statement on 20 December 1997; secondly, that Mr Stacey's statement to Sgt Buckley of what he saw was of a very limited nature and not plainly to the effect of the evidence which he gave here; thirdly, that the evidence would be in the nature of the witness corroborating himself.
24 The evidence is not of low probative value for the reasons I have given. It is important evidence in support of the credit of Mr Stacey who is, as I understand it, the Crown's only eye witness to what is alleged to have occurred. I do not believe that there is any serious risk or danger that the jury, properly directed, would be misled or confused about the significance they would be entitled to attach to it. The evidence should not be excluded pursuant to s 135(b).
25 For these reasons, the material in Sgt Buckley's statement may be adduced in evidence.

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I certify that this and the
12 preceding pages are a true copy of the Reasons for
Judgment herein of The
Honourable Justice Sperling.

P. Kirwan, Associate
Date: 21 April 1999

Last Modified: 09/03/1999