Regina v Patsalis and Spathis [No 10]

[1999] NSWSC 990

CITATION:	Regina v Patsalis & Spathis [No 10] [1999] NSWSC 990 revised - 01/10/99
CURRENT JURISDICTION:	Criminal Division
FILE NUMBER(S):	70002/97; 70200/97
HEARING DATE(S):	28 June 1999 - 30 June 1999 2 July 1999 5 July 1999 - 7 July 1999 12 July 1999 - 14 July 1999 19 July 1999 - 21 July 1999 22 July 1999 - 23 July 1999 27 July 1999 2 August 1999 - 6 August 1999 9 August 1999
JUDGMENT DATE:	10 August 1999
PARTIES :	Regina v Michael Patsalis Alexios Spathis
JUDGMENT OF:	Kirby J

COUNSEL :	P Power (Crown) J Amor-Smith (Patsalis) D Campbell (Spathis)
SOLICITORS:	K Roots (Crown) Coustas & Co (Patsalis) Hancock Alldis (Spathis)
CATCHWORDS:	CRIMINAL PRACTICE & PROCEDURE; Application under s38 Evidence Act 1996; Leave sought to cross examine Crown witness; Unfavourable witness
ACTS CITED:	Evidence Act 1995 - s38, s135, s137, s192(2)(b)&(c)
CASES CITED:	R v Lozano (CCA, unreported, 10 June 1997) R v GAC (CCA, unreported, 19 December 1996) R v Richard Adam (Wood CJ at CL, unreported, 3.12.98)
DECISION:	Refer para 33

THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

KIRBY J

Tuesday 10 August 1999

70002/97 - REGINA v MICHAEL PATSALIS

70200/97 - REGINA v ALEXIOS SPATHIS

JUDGMENT (Re Second Application under s38 Evidence Act 1995) [No. 10]

1   HIS HONOUR: The Crown has, for a second time, sought leave to cross examine a Crown witness, Mrs Spathis. I determined that leave should be given in respect of certain issues, which were then enumerated (T 1003). I indicated that I would later provide reasons for my ruling. I now do so.

Background

2   In April 1996 Mrs Spathis, then Ms Figueira, was engaged to the accused, Mr Alexios Spathis. They lived together at the home of Mr Spathis’ parents at 18 St Paul Street, Randwick.

3   The body of the deceased was discovered early on Friday 12 April 1996. At 6.00pm, or thereabouts, information was communicated to the police concerning a vehicle, POZ.344, which was observed in the area in which the body was discovered at a time when the body had been set alight. That vehicle was registered in the name of Mr Spathis. Through the Motor Registry records, the police were able to determine the address of Mr Spathis. Police were thereafter despatched (soon after 7.00pm) to carry out surveillance on Mr Spathis’ home.

4   One gathers that, by this means, Ms Figueira (now Mrs Spathis) was stopped by police at approximately 9.15pm. She was driving another motor vehicle. She was taken to the Botany Police Station, where she was interviewed. A statement was prepared. It included the following paragraphs:

“8. During the afternoon and evening I spoke with Alex on a number of occasions. I rang him on the mobile and he also called me using the mobile. As I said we were organising the holiday and Alex was apparently doing some running around for the holiday in between finishing lunches at the bistro and re-opening. He rang me about 7pm. He was apparently on his way back to work and the car had broken down. Alex owns a green Datsun 240Z coupe. I don’t know the number, it’s POZ something. He was driving this car at the time. He had in fact driven to work in that car earlier in the morning. I said to him, “What are you doing?’. He said, ‘I’m in the middle of Parramatta Road, the car’s broken down and I’m waiting for a tow. I’m still trying to get it started if I can.’ We spoke about the car a bit more and then hung up.
9. From this time on we spoke about every half hour or so. I rang him on a number of occasions and he also rang me. I also rang and spoke with Peter, Alex’s partner at the bistro. Peter was aware of Alex’s difficulty and Alex had also contacted him saying that Alex could not make it to work in the evening because the car was stopping and starting all the time. On each occasion I spoke to Alex he was on the mobile phone.
10. The last time I spoke with Alex would have been about 11.00pm. He had got the car going but I don’t know at what time he actually got it going. I remember asking him where he was at the time and he said, ‘I’m coming through Earlwood, I’m about ten minutes away.’ He would have arrived home about 11.30 or 12.
11. When he arrived home he was frustrated about the car. He had been able to drive the car home. I remember he had oil all over him and he smelt like the car. At the time he was wearing his work uniform, dark trousers and a light grey or whitish collared shirt. I don’t remember what he had on his feet, he usually wears block boots. When he came home we talked briefly about the car and he then went and had a shower pretty much straight away. I soaked the clothes he had on over night and then washed them today, I can’t remember if I did the top because they weren’t as dirty as the pants, I think the top might still be in the washing basket. After he had showered he came to bed and we stayed up and talked about the holiday and the car and we went to sleep.”

5   From the viewpoint of the Crown, this statement was significant. It is apparent from the account given by Mr Spathis to police the same evening (which was not known to Mrs Spathis at the time of her interview), that Mr Spathis did not on 11 April 1996 spend hours broken down on Parramatta Road, waiting for a tow truck.

6   At 1.30am on Saturday 13 April 1996, the police conducted an electrically recorded interview (ERISP) with Ms Figueira (hereinafter referred to as Mrs Spathis). The interview dealt with a matter which had come to light after the statement had been taken. Mrs Spathis, in her earlier statement, had said that she had travelled to the city with Mr Spathis early on Friday 12 April 1996. She had paid cash for certain airline tickets. The cash had been obtained from her account.

7   In fact, as Mrs Spathis readily acknowledged when later interviewed, part of the cash had been provided by Mr Spathis. The travel agent still had the cash which had been paid. By reference to the serial numbers, certain notes could be traced to money which had been in the possession of the deceased before his death.

8   Mrs Spathis furnished a further statement (dated 13 April 1996). The statement was prepared by police, based upon the answers provided in the ERISP interview.

Evidence Before this Court

9   Mrs Spathis was called to give evidence by the Crown. She was asked, in a non-leading way, to recount conversations she had with her husband on the evening of Thursday 11 April 1996. She did so at some length. Her account included the conversations referred to in the concluding lines of para 8 above, and the concluding lines of para 10. It also included much more. Mrs Spathis, for instance, said this: (T 902/903)

“Q. Can you tell the court what he said?
A. He was speaking very quickly. He sounded like he was running a marathon and he said, ‘Where are you?’ And I said, ‘I’m at home where you called’. He said ‘No, whereabouts? Where’s mum and dad? Nobody go anywhere. Don’t even go outside.’ I said, ‘What, we are not going anywhere. Why? What is the matter? You sound full of anxiety. Where are you anyway?’ And then I said, ‘What’s wrong with you? You sound full of anxiety. What’s wrong with you? Where are you?’ He said, ‘The car, it’s broken down. It won’t start. I’m waiting for a tow. Don’t go outside’ and then he hung up.”

10   Evidence in respect of later conversations was in similar terms. The examination continued: (T 905)

“Q. He did eventually get home, did he?
A. Yes, he got home about 11.30.
Q. when he got home did you notice something about him? What was he wearing, for a start?
A. He had a white collared greyish T-shirt, he had a pattern coloured jacket, cardigan style, and some dark grey greenish trousers.
Q. Did you notice anything about his appearance?
A. Not about his appearance, no.
Q. What about the way he smelt in terms of the way he normally smelt when he came back from work?
A. Nothing out of character, nothing that I noticed was strange.”

11   Mrs Spathis added: (T 905)

“Q. After you arrived home did you do something with that jacket, did you put it somewhere or do something with it?
A. The next day I soaked it.”

12 The Crown then made its first application for leave under s38(1) to cross examine Mrs Spathis. Having heard argument, I refused leave at that point (Judgment No. 9). I did so on the basis that the examination in chief was not yet complete, and Mrs Spathis was about to be cross examined by a party hostile to the interests of her husband (cf 38(6)).

13   Mrs Spathis resumed her evidence. She was reminded of questions which had been directed to her concerning the way in which her husband appeared when he returned on the evening of Thursday 11 April (T 938). Her answers were read to her. The following was then put: (T 938)

“Q. having reflected upon it, was there anything that you can add to that evidence that you gave before about his appearance when (he) returned on that --
A. As I said, he was in his work clothes, from what I saw him leave in the morning. He had like oil stains on him and when he came home and he just come up to me and see that I was all right and embraced me and he smelt like, you know, like oil, the car smell, that type of thing.”

14   She was then taken to the conversation with her husband before they went to sleep. The following was asked: (T 939)

“Q. do you recall whether you had any conversation before you went to sleep?
A. I was mainly doing the talking. Alex was just lying there staring up at the ceiling and I just was questioning him. ‘Where is the car? Is it outside now?’ And he wasn’t really responding so I started to go on about the holiday and he just wasn’t responding so I thought I wouldn’t go into it any more about the night or the car. And I tried to relax him and embraced him and I remember his heart just beating so fast and I got up and I said, ‘Are you all right? Are you OK? Your heart is beating so fast, what’s wrong with you? It sounds really bad, are you okay?’”

Cross Examination by Counsel for Mr Patsalis

15   Mrs Spathis was then cross examined by counsel for Mr Patsalis. She was invited to read onto the record paragraphs 8 to 11 of her statement of 12 April 1996, extracted above. Counsel then read to Mrs Spathis the evidence she had given in this Court in answer to the Crown, concerning her conversations with her husband during the course of 11 April 1996 (T 959-960). Counsel for Mr Patsalis then put the following: (T 961)

“Q. … What I am putting to you is that what you have said in your particular transcript is different to what you said in your statement, would you agree with that?
A. It’s more personal.
Q. It’s a fuller account of what you can recall?
A. It’s a more honest account.”

16   And there the matter was left.

17 Mr Campbell, appearing for Mr Spathis, then cross examined Mrs Spathis. At the point of re-examination, the Crown again sought leave under s38(1).

Submissions by the Crown

18 Section 38(1) of the Evidence Act 1995 is in the following terms:

“ 38(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.”

19 The Crown relied upon s38(1)(a) and (c). Specifically, it pointed to four matters:

· First, the elaboration by Mrs Spathis upon her initial statement was a significant departure from the account previously given. The Crown had sought a short adjournment to confer with Mrs Spathis before she gave evidence. Nothing was said in that conference which signalled the additional evidence which ultimately emerged. Had the Crown been on notice of such evidence, it would have given consideration to whether she should be called in the Crown case. Thought would need to have been given as to whether she could be relied upon as a witness of truth.

· Secondly, there was a contradiction in her evidence as to when she soaked the clothing of Mr Spathis. Washing the clothing was material because of the possibility of bloodstains, or other indicia (including smell) which may have connected Mr Spathis with the events of the previous evening.

· Thirdly, her description of Mr Spathis, then her fiancee, after his arrival home was significantly different from the description she provided in her evidence. It is the difference between “frustration” and “acute anxiety”. A specific cause had been identified for the frustration, namely the car. The acute anxiety, on the other hand, was largely unexplained.

· Fourthly, Mrs Spathis’ description of her conversation with her fiancee before she went to sleep was again significantly different from her statement that “we stayed up and talked about the holiday and the car and went to sleep”.

20   There were other matters to which the Crown drew attention, including a conversation between Mrs Spathis and her husband on the way to the travel agent. The original statements did not deal with those matters (either expressly or by implication). They therefore seem to me to be in a somewhat different category.

The Response of Mr Spathis

21   Counsel for Mr Spathis responded in a number of ways. The statements provided by Mrs Spathis were clearly not an exhaustive account of her conversations with her fiancee that evening. They were confined to the subject of immediate interest to the police at that time, namely the whereabouts of Mr Spathis, and his car. There had been many conversations in the course of the evening. It was reasonable to suppose that other things were said. The Crown, by the very general questions directed to Mrs Spathis, invited disclosure of the additional material. They cannot now be heard to complain. The elaboration could not be characterised as either “unfavourable” or “inconsistent”.

Analysis of the Evidence

22   In R v Lozano (CCA, unreported, 10 June 1997). Hunt CJ at CL (with whom Barr J agreed) made a number of comments in relation to s38, and specifically s38(1)(a). He said this: (at 10)

“Section 38 was intended by the Law Reform Commission to abrogate the common law relating to hostile witnesses (26 ALRC vol 1, par 625), and the Act has been successful in doing so ( Regina v Ivan Robert Marko Milat (Hunt CJ at CL, 23 April 1996, unreported) at 4-5). The word ‘unfavourable’ which is used in the section (and which is not defined in the Act) should not therefore be interpreted as necessarily requiring either the witness or the evidence itself to be hostile or adverse to the case of the party calling the witness, in the sense that the evidence denies that case or attacks other evidence upon which that party relies. In Regina v Souleyman ((1996) 40 NSWLR 712 at 715), Smart J adopted a dictionary meaning of unfavourable as ‘not favourable’. I am content, too, to adopt that meaning.”

23   See also R v GAC (CCA, unreported, 19 December 1996) and R v Richard Adam (Wood CJ at CL, unreported, 3.12.98) especially p 14.

24   The impression created by the statements of Mrs Spathis is of a series of calls to Mr Spathis concerned with the break-down of his car, and delay whilst he waited for a tow truck. Nothing was said which indicated anxiety, or concern on his part for the welfare of his wife, or members of his family. In para 8, having recounted in the first person the conversations concerning the break down, Mrs Spathis concluded her account with these words:

“We spoke about the car a bit more and then hung up.”

25   The impression is reinforced by the opening words of paragraph 11, namely:

“When he arrived home he was frustrated about the car. He had been able to drive the car home. I remember he had oil all over him and he smelt like the car.”

26   The car was still prominent in Mrs Spathis’ account as she spoke with her fiancee in bed. Her statement is in these terms:

“After he had showered he came to bed and we stayed up and talked about the holiday and the car and we went to sleep.”

27 I have some misgivings about whether the elaboration by Mrs Spathis may be regarded as “unfavourable”, within the meaning of s38(1)(a). Simply because a witness may add something favourable to an accused does not render the evidence “unfavourable” to the Crown. If the elaboration is patently truthful it could not be so regarded in my view. It is “unfavourable”, within the meaning of s38(1)(a), where it may rationally be inferred that the elaboration may be untruthful, and motivated by a desire to assist the accused.

28 On balance, I believe the evidence of Mrs Spathis can be characterised as “unfavourable” to the Crown in this sense. However, I prefer to determine the matter by reference to s38(1)(c).

29   The evidence given by Mrs Spathis on 5 August in this Court, taken as a whole, is inconsistent with the statement made to the police on 12 April 1996 in the various respects identified by the Crown. The inconsistencies are open to the construction that Mrs Spathis may have coloured her evidence to assist her husband. Her husband asserted that he was threatened by Mr Patsalis. He sought to explain his actions on 11 April 1996, in part, by reference to such threats.

Discretionary Matters

30 Leave under s38(1) is discretionary. Questions of fairness also arise under s135, s137 and, specifically, s192(2)(b). For a number of reasons, I believe it is appropriate to give the Crown leave to cross examine Mrs Spathis. The cross examination, however, should be limited to certain issues.

31   First, given the cross examination of Mrs Spathis by counsel for Mr Patsalis, the Crown would, in any event, be entitled to seek from Mrs Spathis an explanation for the differences between her statement to the police, and her evidence. Much of the cross examination that can be expected, were leave given, would be material which could be pursued in re-examination without leave (although by non-leading questions).

32 Secondly, the Crown, however, seeks to go further. It wishes to challenge Mrs Spathis, and suggest that she is colouring her evidence to assist her husband. Given the way in which the issue arose, I believe that the Crown should be allowed to put that suggestion (cf s192(2)(b)). I also believe that it is fairer to Mrs Spathis (cf s192(2)(b)). At the conclusion of the cross examination on behalf of Mr Patsalis, the issue was left hanging in the air, unresolved. Although insight may have been provided by re-examination, I believe that cross examination, in the circumstances, is more appropriate. It will provide the jury with a more substantial foundation (which is less speculative) upon which to make its judgment in respect of Mrs Spathis. The conversations which Mrs Spathis recounts are important evidence (s192(2)(c)).

33   Thirdly, the disadvantage to Mr Spathis, were leave given, is ameliorated, in my view, by the timing of the cross examination. Mrs Spathis has been permitted to give her evidence in chief without challenge by the Crown. She has now been cross examined by counsel for the co-accused. As mentioned, that cross examination left certain issues unresolved. Those issues may now be addressed by cross examination by the Crown. I have indicated to Mr Campbell that he may ask further questions of Mrs Spathis at the conclusion of the Crown’s cross examination. Leave was therefore given, confined to the following issues:

· First, the suggestion in conversations at 8.44 and 8.46pm and later that there was a need for Mrs Spathis and members of her family to stay indoors, and a concern on the part of Mr Spathis for their safety.

· Secondly, the issue raised by para 11 concerning the presentation of Mr Spathis upon his arrival home, whether frustration or anxiety.

· Thirdly, para 11 generally, including the topic in the final sentence concerning the conversation before going to sleep.

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Last Modified: 10/01/1999