The Queen v Casimiro and The Queen v Pinto (No 2)
[2020] NTSC 46
•28 July 2020
CITATION:The Queen v Casimiro and
The Queen v Pinto (No 2) [2020] NTSC 46
PARTIES:THE QUEEN
v
CASIMIRO, Pedro Michael
and
THE QUEEN
v
PINTO, Abel
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT exercising Territory jurisdiction
FILE NO:21852872 and 21852871
DELIVERED: 28 July 2020
HEARING DATE: 17 June 2020
JUDGMENT OF: Kelly J
CATCHWORDS:
EVIDENCE – Whether exculpatory admissions made by an accused against a co-accused should be excluded under s 135 Evidence (National Uniform Legislation) Act – s 137 Evidence (National Uniform Legislation) Act only applies to evidence adduced by the prosecutor in the case against the defendant against whom the evidence is adduced – It has no application to evidence adduced by the prosecutor against one defendant which is prejudicial to a co-accused in a joint trial of co-defendants - Under s 135 Evidence (National Uniform Legislation) Act by contrast the Court may refused to admit evidence if its probative value is substantially outweighed by the danger that it might be unfairly prejudicial to any party
Evidence (National Uniform Legislation) Act2011 (NT) s 9(1), s 55, s 59, s 76, s 81 (2), s 98, s 111(1), s 135, s 137
Police Administration Act 1978 (NT) s 120IMM v The Queen (2016) 257 CLR 300, applied
Aytugrual v The Queen (2012) 247 CLR 170; Flowers v The Queen (2005) 189 FLR 423; Lui Mei Lin v The Queen [1989] 1 AC 288; Middleton v R (1998) 19 WAR 179; Nguyen v The Queen [2020] HCA 23; Papakosmas v The Queen (1999) 196 CLR 297; R v Bauer (2018) 92 ALJR 846; R v Gibb and McKenzie [1983] 2 VR 155; R v Lowery and King (No 3) [1972] VR 939; R v Miller [1952] 2 All ER 667; R v Pearce (1979) 69 Cr App R 365; Singh v The Queen [2019] NTCCA 8; Tim Barr Pty Ltd v Narui Gold Coast Ltd (2009) 258 ALR 598, Webb v The Queen (1994) 181 CLR 41, referred
Australian Law Reform Commission, Evidence (Interim) Report, Report No 26 (1985) vol 1, 755
Williams, Anderson, Marychurch and Roy Uniform Evidence in Australia (LexisNexis Butterworths, 2nd ed, 2017); John Anderson and Peter Bayne, Uniform Evidence Law, Text and Essential Cases (Federation Press, 3rd ed, 2016); Stephen Odgers, Uniform Evidence Law (Thomson Reuters, 14th ed, 2019)
REPRESENTATION:
Counsel:
Crown:C Dixon
Accused (Casimiro): J Adams
Accused (Pinto): M Thomas
Solicitors:
Crown:Director of Public Prosecutions
Accused (Casimiro): Northern Territory Legal Aid Commission
Accused (Pinto): Northern Territory Legal Aid Commission
Judgment category classification: B
Judgment ID Number: Kel2009
Number of pages: 28
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINThe Queen v Casimiro and The Queen v Pinto (No 2) [2020] NTSC 46
No. 21852872 and 21852871
BETWEEN:
THE QUEEN
AND:
PEDRO MICHAEL CASIMIRO
AND BETWEEN:
THE QUEEN
AND:
ABEL PINTO
CORAM: KELLY J
REASONS FOR JUDGMENT
(Delivered 28July 2020)
Introduction
Mr Casimiro and Mr Pinto have been charged with causing serious harm to Justin Pease.
The Crown Case
The Crown case against Mr Casimiro is that he stabbed the complainant with a knife outside a Darwin night club, Monsoons, in the early hours of the morning on Saturday 22 December 2018. The Crown case against Mr Pinto is based on common intention and, in the alternative, aiding Mr Casimiro to commit the offence.
Police searched Mr Casimiro under the provisions of s 120C of the Police Administration Act 1978 (NT) approximately half an hour after the stabbing. In addition to drug related accoutrements, they found a bloodstained folding knife in his pocket. On testing, the victim’s DNA was found on the blade of the knife and Mr Casimiro’s fingerprints were found on the handle.
The police interview with Mr Casimiro
Mr Casimiro initially declined to take part in a recorded interview with police. A little over 16 months later, on 7 May 2020, he went to police and asked to do an interview. He took with him a written account which he consulted during the interview. It is not entirely clear from the transcript but he appears to have read the account from the notes before police asked him further questions.[1]
In the May 2020 interview with police (“the interview”), Mr Casimiro gave an exculpatory account of the stabbing. The essence of what he said is that he did not stab the victim and that Mr Pinto had told him, just after the stabbing occurred, that he (Mr Pinto) had done so.
Mr Casimiro said he had only gone out that evening with Mr Pinto because he was afraid of him, and that Mr Pinto was a “standover person” who had once broken Mr Casimiro’s finger.
Mr Casimiro gave an account of an altercation with another person inside Monsoons, about five minutes before the stabbing occurred outside, which was caught on CCTV, and said that as they were walking down the lane outside afterwards, Mr Pinto told him “how he’d bashed the guy in Monsoons” and that he’d bashed him with the butt of his knife.
Mr Casimiro said that when Mr Pinto told him that, he pulled his own knife out of his pocket and started playing with it and Mr Pinto told him that “it makes a good counterweight for punching”.
He told police that at that point he was walking a couple of metres ahead of Mr Pinto and he saw a bloke (the victim) crossing the road towards them. The bloke went to walk between them and all of a sudden he heard Mr Pinto say, “Grab him,” and something else. The victim came at Mr Casimiro with punches; he stepped back and punched the victim to the side of the face knocking him down. Then Mr Pinto went up to the victim, punching him “with a flurry of punches”. Mr Casimiro said he was trying to figure out what was going on. It seemed like forever so, to hurry Mr Pinto up, he ran up and punched the victim once more and looked at Mr Pinto “as to hurry him up”. He stepped away again as he saw three people walking towards them. Then Mr Pinto ran up to him, said to the three people, “He just called us niggers,” and ran off. He said he didn’t know why but he “followed in suit” and as they were running, Mr Pinto said to him, “I just stabbed the cunt.” Mr Casimiro said that his (Mr Casimiro’s) body language was “like what the fuck – and stunned” and Mr Pinto said, “Fuck him. He was a gammon cunt anyway.”
Objections to the interview and the voir dire
The Crown intends to adduce evidence of the interview but contends that certain parts of it are inadmissible and should be edited out, or alternatively, that the Court should exercise a discretion under s 135 of the Evidence (National Uniform Legislation) Act (“UEA”) to exclude those passages because their probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to another party, namely Mr Pinto.
Mr Casimiro contends that the whole interview is admissible and should be received in evidence.
When the matter first came on for hearing on 17 June 2020, I adjourned it and directed that counsel for Mr Pinto be notified and given an opportunity to be heard. Mr Pinto’s counsel appeared on the adjourned date on 19 June 2020, supported the Crown position, and also made application for several other passages to be excised.
General Principles
On the hearing of the voir dire, it was common ground that I should approach the determination of the objections on the basis of the general principle that if the Crown tenders a statement by the accused in order to rely on admissions in the statement, it must tender the whole statement taking the good with the bad, the exculpatory with the inculpatory,[2] and then apply any exclusionary rules in relation to the passages objected to.
Applicability of UEA s 137
Mr Thomas for Mr Pinto based his objections to the interview mainly on UEA s 137 which 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 defendant.
In my view, UEA s 137 has no application to the interview. The evidence of the interview is intended to be “adduced by the prosecutor” but only as evidence against Mr Casimiro; it is not evidence against the defendant Mr Pinto, and the jury will be so directed. Whether s 137 is applicable depends on whether the words “the defendant” in that section refer only to the defendant against whom the Crown is adducing the evidence – or is wide enough to refer to any defendant in a case such as the present where there is a joint trial of co-defendants. In my view, the plain meaning of the words supports the view that the section is only intended to apply to the defendant against whom the evidence is being adduced.[3] I am fortified in this view by a consideration of the common law position in relation to evidence which is prejudicial to a co-offender.
In R v Lowery and King (No 3),[4] the Full Court of the Supreme Court of Victoria held that although the Crown is precluded from leading evidence of prior misconduct on the part of an accused which does no more than show that he is the sort of person to commit the crime charged, that rule is not based on relevance, but on fairness, and there is no reason of policy or fairness which justifies the exclusion of evidence which is relevant to prove the innocence of an accused person even though the evidence may show a disposition or propensity in a co-accused to commit the crime charged.[5] Lowery and King (No 3) was applied in R v Gibb and McKenzie.[6]
In Lui Mei Lin v The Queen,[7] the Privy Council, on appeal from the Court of Appeal of Hong Kong, applied the same principle. In doing so their Lordships quoted the following passage from R v Miller:[8]
The fundamental principle, equally applicable to any question that is asked by the defence as to any question that is asked by the prosecution, is that it is not normally relevant to inquire into a man’s previous character, and, particularly, to ask questions which tend to show that he has previously committed some criminal offence. It is not relevant because the fact that he has committed an offence on one occasion does not in any way show that he is likely to commit an offence on any subsequent occasion. Accordingly, such questions are, in general, inadmissible, not primarily for the reason that they are prejudicial, but because they are irrelevant. There is, however, this difference in the application of the principle. In the case of the prosecution, a question of this sort may be relevant and at the same time be prejudicial, and, if the court is of the opinion that the prejudicial effect outweighs its relevance, then it has the power, and indeed, the duty, to exclude the question. Therefore, counsel for the prosecution rarely asks such a question. No such limitation applies to a question asked by counsel for the defence. His duty is to adduce any evidence which is relevant to his own case and assists his client, whether or not it prejudices anyone else.[9]
Their Lordships then referred to the right to cross-examine on prior inconsistent statements and concluded:
It was also suggested on behalf of the Crown that, if cross-examination on the excluded statement were to be permitted, the trial judge might have to carry out what was described as a balancing exercise, balancing the interests of the maker of the statement against the interests of the co-accused on whose behalf it was sought to cross-examine before deciding whether or not to permit the proposed cross-examination. Their Lordships disagree. In their view, the right to cross-examine is, as Lord Donovan stated, unfettered, the only limit being relevancy. If the statement contains irrelevant material the trial judge would no doubt insist that the irrelevant matter should not be referred to and, if necessary, excised from any copies of the statement which the jury might be allowed to see.
The effect of these cases would seem to be that, at common law, an accused is not subject to the same limitations as the prosecutor: an accused may adduce any evidence relevant to his case regardless of whether that evidence is prejudicial to a co-accused.
A complicating factor is that the interview is not being (and could not be) adduced in evidence by Mr Casimiro: it is to be adduced by the Crown. The question is, whether the limitation on the prosecutor’s ability to tender material which tends to show prior misconduct of an accused would apply to the tender of the interview, or whether the principle in the above cases would apply by analogy, so that, under the common law principles, evidence supportive of Mr Casimiro’s defence would be allowed in regardless of any potential prejudice to Mr Pinto.
In my view, the latter position is the correct one, subject of course, to any modification of the common law position that has been introduced by the UEA. The main reason for my reaching that view is that the interview is not being adduced in the Crown case against Mr Pinto. It cannot be evidence against him. It is evidence only in the case against Mr Casimiro.
Further, the parts of the interview which inculpate Mr Pinto are part of Mr Casimiro’s account which is exculpatory of himself. Although the interview is to be adduced by the Crown, the exculpatory parts are being adduced for the benefit of Mr Casimiro pursuant to the rule of fairness referred to above.[10] It is no part of the Crown case that the exculpatory parts of the interview, including the parts which inculpate Mr Pinto, are true. It seems to me, therefore, that the principle in the above cases would apply and material in the interview relevant to Mr Casimiro’s defence would not be excluded.
This reinforces my conclusion that, on its plain wording, s 137 is only applicable to evidence adduced by the prosecutor in the case against the defendant against whom the evidence is adduced and has no application to evidence which is adduced by the prosecution against one defendant which is potentially prejudicial to a co-accused. Therefore, material in the interview relevant to Mr Casimiro’s defence will not be excluded under s 137 notwithstanding any potential prejudice to Mr Pinto (but subject to any other exclusionary rules).[11]
One of those applicable rules is UEA s 135. Although I have found that UEA s 137 does not apply to the interview, UEA s 135 does have application. Section 135 provides (inter alia) that the court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to a party. This is in contradistinction to s 137 which provides for mandatory exclusion of evidence if the probative value to be outweighed by the danger of unfair prejudice to the defendant.[12]
Another provision of the UEA which must be held to have modified the common law position in ways relevant to the issues on the voir dire is the tendency rule in UEA s 98 which provides (relevantly):
The tendency rule
(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind unless:
(a)the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party’s intention to adduce the evidence; and
(b)the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.
The tendency rule is not limited to tendency evidence relied on by the prosecutor but applies to any party.
Specific objections
Statements accusing Mr Pinto of unrelated bad behaviour
A transcript of the interview was tendered on the voir dire (“the transcript”). The Crown objects to the following statements on pages 6 and 8 of the transcript:
· “And he asked me then if – if – if I wanted to go – um – rob someone with him for – ah – for an eight ball. He, so – so he wanted to go rob some goon for an eight ball of speed. And I told him no I don’t do that sorta stuff.” (page 6)
· “Q: What was in the bum bag that you saw? A: Ah – well I know, there was a lotta cash flow in that bum bag, I know that.” (page 8)
The basis of the objection is that the statements are not relevant to any issue in the proceeding (s 55). The sole effect of the statements (assuming the reference to the cash was intended to suggest that Mr Pinto had in fact robbed someone while he was out of Mr Casimiro’s company) is to cast aspersions on Mr Pinto’s character in a way which is not relevant to Mr Casimiro’s defence. I agree. Those statements will be excluded.
Second hand hearsay
The Crown has objected to the admission of a passage on page 24 of the transcript in which Mr Casimiro talks about someone telling him that Mr Pinto told them he had put his knife down a drain. This is objected to as second hand hearsay, and this was effectively conceded by Mr Adams for Mr Casimiro.[13] That passage will be excluded.
Possible tendency evidence
The Crown has objected to the admission of the following passages on page 28 of the transcript.
· “Q: Um – are you aware of Mr Pinto stabbing anyone else? A: Yep I am, yep. Q: Are you? A: Yep. Q: So prior to this occasion you went out with him? On that night? A: Ah – I don’t wanna go into it, sir.”
· “Q: Ah – but you’re aware of previous occasions, and you don’t have to go into ‘em but you’re aware that he has carried a knife before, and he’s used it on people, is that fair to say? A: Yeah.”
Mr Adams for Mr Casimiro conceded that the statement was objectionable unless Mr Casimiro was permitted to adduce tendency evidence in relation to Mr Pinto. He indicated that he was investigating the possibility of serving a tendency notice. He has since advised that no tendency notice will be served. Therefore, on the basis of the concession by counsel for Mr Casimiro, those statements will be excluded.
Lay opinion and speculation
The Crown objects to the underlined parts of the following statements on page 3 of the transcript.
· I was hesitant on catching up with him [ie Pinto] because I’d been through some dramas with him before and – um – I didn’t really have a good time with him ‘cause he’s – um – so – so, somewhat of a – of a standover person.
· … he [ie Pinto] had made friends with – ah – my family friends ….. And he used them as – um – I forgot the – ah – word to say it but he used them as sorta like bait to, for me to catch up with him.
Ms Dixon for the Crown submitted that these two statements were neither exculpatory nor inculpatory and so did not necessarily fall within the general rule that the Crown must take the good with the bad. Rather the first statement (to the effect that Mr Pinto was “a standover person”) is inadmissible lay opinion evidence (s 76); and the second statement (that Mr Pinto used Mr Casimiro’s friends as bait) is mere speculation.
The Crown also contended that neither statement was evidence that could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding (s 55); and that, even if otherwise relevant and admissible, both should be excluded under s 135 as whatever probative value they may have is substantially outweighed by the danger that the evidence might be unfairly prejudicial to Mr Pinto.
Mr Adams, for Mr Casimiro contended that the evidence was relevant for the following reason. Mr Casimiro and Mr Pinto were out socialising; the jury might therefore infer that they were on friendly terms and might for that reason more readily draw inferences supportive of there having been a common purpose between them to assault the victim. Mr Casimiro wants evidence put before the jury that he was only in Mr Pinto’s company out of fear, and contends that that is relevant to the issue of common purpose. I accept that those statements could be relevant for that purpose – ie they are prima facie admissible under UEA s 55.
As to the submission that the first statement (the standover person assertion) was opinion, Mr Adams contended that the opinion rule did not apply to admissions [UEA s 81(1)] and characterised the whole record of interview as “an admission” to which the exception applied. I do not accept that the statement in question is an admission or part of an admission. It is part of an exculpatory account given by Mr Casimiro. The fact that there are admissions contained within the interview does not mean the entire interview can be cast as “an admission” for the purposes of s 81.
By way of completeness, I should add that no reference was made in argument to s 111(1) which provides:
Evidence about character of co-accused
(1) The hearsay rule and the tendency rule do not apply to evidence of a defendant's character if:
(a)the evidence is evidence of an opinion about the defendant adduced by another defendant; and
(b)the person whose opinion it is has specialised knowledge based on the person’s training, study or experience; and
(c)the opinion is wholly or substantially based on that knowledge.
However, in my view that section would not have assisted Mr Casimiro as it applies to expert opinion evidence only.
Mr Thomas for Mr Pinto, supported the Crown’s contentions and contended further that both statements should be excluded under s 137. As explained above, s 137 has no application to the interview.
I agree with the prosecutor that both statements on page 3 of the transcript should be excluded. The first is inadmissible opinion evidence [s 76] and the second is mere speculation. That makes it unnecessary to consider discretionary exclusion under s 135.
Similar objections were made to the following passages on pages 6, 7, 8, 18, 19 and 26 of the transcript and will be the subject of the same ruling:
· Page 6: “And – and – and so he went off drinking with his mate somewhere. But I, like I dunno, I think he was up to something.” (speculation)
· Page 7: “And – and this – this is what he’s always doing to me. He’s trying to stand over me ‘ cause he’s a bit bigger.” (opinion)
· Page 8: “Q: All right so, did he have a knife in his bum bag? A: Um – I’d – I’d say that he did.” (speculation)
· Page 18: “Q: Is that what led to him meeting him on the street, was that pre-arranged? A: Yeah so I – I – I like to think that it was but I don’t know, I can only speculate on that.” (speculation)
· Page 19: “Q: And did Pinto have a bum bag at this stage? A: Um – I can only presume so.” (speculation)
· Page 26: “Q: Um – as far as the blood spatter, you’re right, it probably, you know, I don’t know, not being an expert … A: Yeah. Q: …. in – ah – blood spatter analysis, that could be just from striking the victim with the knife or … A: Mmm. Q: … things like that – um – I can only talk about the evidence that’s in front of us A: Yeah I understand yeah, yep.” (speculation by the police officer)
There is another passage on page 25 of the transcript in which it is put to Mr Casimiro that his knife (which he said didn’t leave his possession) had his fingerprints and the victim’s blood on it and he says: “Yeah – yeah I understand that, but I – I never used it on the victim at all, and that to me looks like a little spray of blood, it doesn’t look like …” This part of the interview was not objected to, perhaps by oversight. If it is objected to, the underlined portion would be the subject of the same ruling – excluded as mere speculation.
Statements relevant to common purpose
The Crown objects to the underlined parts of the following statements on page 4 of the transcript:
· And he gave me a hug and he apologised to me for all the stuff he put me through. He even broke me left finger once. Um – I – I – I was all mmm
· On – on arrival, and – and upon greeting them, Pinto gave me a hug and said how sorry he was about our past dealings. He had broke my little finger at one stage, which I seek medical help with at the Darwin Hospital.
· When we got back to Pinto’s unit, in the city [the friends] said they had to be off home because they had work the next day. I was a little taken aback by that, because I didn’t want to be alone with Pinto. ‘Cause I was, and – and ‘cause I was and am afraid of him because I know how far he can take things.
Ms Dixon for the Crown objected to this evidence on the ground of relevance [UEA s 55]. Mr Adams for Mr Casimiro said that its relevance was as set out in [33] above (“the common purpose argument”). I have accepted that evidence of this kind is relevant to the jury’s assessment of whether the Crown has established that Mr Casimiro and Mr Pinto had a common purpose to assault the victim (“the common purpose ruling”) although the evidence on page 3 of the transcript has been excluded on other grounds. Each of the statements set out in [40] is covered by the common purpose ruling.
Unlike the statements on page 3 of the transcript, which consisted of opinion and speculation, each of the three statements set out in [40] is a statement of alleged fact. (The first two are statements of objective alleged facts and the third a factual assertion about Mr Casimiro’s state of mind at the relevant time.)
The next question is whether those three statements should be excluded under the discretion in s 135. The statements purport to be evidence of prior bad conduct on the part of Mr Pinto. That evidence is not admissible against Mr Pinto: it is hearsay (ie previous representations made by Mr Casimiro) and is not admissible to prove the existence of the facts Mr Casimiro is asserting in relation to Mr Pinto [UEA s 59]. There are no relevant exceptions to the hearsay rule that would allow Mr Casimiro’s statements about Mr Pinto to be used as evidence against Mr Pinto, and the jury will be directed that nothing Mr Casimiro said in the interview can be used as evidence against Mr Pinto.
Both the Crown and Mr Thomas for Mr Pinto argue that such a warning may be ineffective and that the jury may find it impossible to perform the mental gymnastics required to say: I can take into account what Mr Casimiro says as evidence that Mr Casimiro was afraid of Mr Pinto when looking at Mr Casimiro’s case, but I it cannot take into account as evidence in Mr Pinto’s case. The potential prejudice to Mr Pinto, therefore, is that despite being given such a warning, the jury may improperly treat Mr Casimiro’s statements in the interview as evidence that Mr Pinto is a violent person, and therefore likely to have been responsible for stabbing the victim.[14]
I do not agree that such a warning is likely to be ineffective. It will be given in simple and absolute terms: nothing said by Mr Casimiro in the interview can be used as evidence against Mr Pinto.
In any event, when considering potential prejudice to Mr Pinto, these statements must be seen in the context of the entire interview. In assessing whether there is a danger of unfair prejudice the evidence must not be considered in isolation. The court must take into account other evidence that has been or will be admitted in the proceeding.[15]
The interview also contains the following assertions by Mr Casimiro concerning Mr Pinto that have not been objected to (all on page 5 of the transcript):
·Mr Pinto had bashed a man in Monsoons (after Mr Casimiro had pushed him off a barrel.)
·Mr Pinto said, “Grab him,” (meaning the victim) and at some point punched him with a flurry of punches.[16]
·As they were running off, Mr Pinto said to Mr Casimiro, “I just stabbed the cunt (meaning the victim),” and, “Fuck him, he was a gammon cunt anyway.”
Mr Casimiro also said, (on p 13 of the transcript): “[H]e was just, we were just talkin’ about how – how – how he did the – um – bloke in the thing with the butt of his knife. … How he just smashed him and, ‘cause – ‘cause he, his face didn’t look that good. ... By the end of it. And I was wondering why – ah – how – how he mucked up his face like that.”
He also referred (on page 14 of the transcript) to Mr Pinto “just givin’ it to him with a bunch of uppercuts and all – all the rest of it.”
On page 16, Mr Casimiro said that Mr Pinto told him a knife makes for a good counterweight (ie if held in the hand when punching someone).
None of this is admissible against Mr Pinto and all of it is at least as potentially prejudicial to Mr Pinto as Mr Casimiro’s statement of alleged facts concerning Mr Pinto’s past conduct on page 4 of the transcript (about breaking Mr Casimiro’s finger) – arguably much more so, especially the assertion that Mr Pinto confessed to stabbing the victim set out in the last dot point in [47].
I doubt that there is any real additional prejudice to Mr Pinto in the jury hearing that he once broke Mr Casimiro’s finger and that Mr Casimiro was afraid of him. Further, I do not think that any risk of that potential additional prejudice substantially outweighs the probative value of the evidence to Mr Casimiro’s case that there was no common purpose between himself and Mr Pinto to assault the victim. I do not therefore intend to exercise a discretion to exclude that evidence under s 135. The statements made by Mr Casimiro on page 4 of the interview (set out at [40] above) will be admitted into evidence.
For the sake of completeness, if I am wrong about the inapplicability of s 137, I do not think that the potential prejudice to Mr Pinto of admitting the statements set out at [40] outweighs the probative value of the evidence in Mr Casimiro’s case.
Statements about fear of retribution
The Crown and Mr Pinto object to a series of statements on pages 17, 29, and 31 of the transcript in which Mr Casimiro says he is afraid of retribution from Mr Pinto.
· “Like – like I don’t really like to talk, I’m – I’m – I’m worried about – um – severe pun, severe bloody – um – retributions comin’ back on me for, you know, sayin’ any of this.” (page 17)
· “Q: Um – and you said before that you were concerned about your safety … A: Yeah. Q: … as a result of talking to us, do you wanna explain what you mean by that? A: I’m sure you guys know what I mean by that – um – yeah I’m worried about like – ah – Pinto comin’ out and givin’ a bit of payback for …” (page 29)
· “I don’t think that’s the right thing I’ve done here, you know?” (page 31)
Mr Adams for Mr Casimiro contended that these statements were relevant for the same reason that the statements on pages 3 and 4 of the transcript were relevant – that is to show that Mr Casimiro was afraid of Mr Pinto and accompanied him that night only out of fear, and that this was relevant to the issue of common purpose.
Ms Dixon for the Crown pointed out that the statements set out at [54] are, on their face, statements about Mr Casimiro’s current state of mind made some 16 months after the events making up the alleged offence and could not possibly be relevant to his state of mind at the time of the offence.
Mr Thomas for Mr Pinto supported the Crown objection and also pointed out that the statements were potentially highly prejudicial to Mr Pinto carrying with them a high risk of propensity reasoning.
In my view, these statements are not like the ones on pages 3 and 4 of the transcript which went to Mr Casimiro’s state of mind at the time of the alleged offence and his knowledge of past conduct by Mr Pinto which may have affected his state of mind at the time and so were relevant to the common purpose issue. Any fears Mr Casimiro may have had 16 months later that Mr Pinto might visit retribution on him for talking to police would have very little (if any) probative value in relation to the common purpose issue – and none in relation to any other issue in the case. The statements are not just about Mr Casimiro’s state of mind at a different time; they are about a different issue, not Mr Casimiro’s fear of Mr Pinto in general, based on past behaviour, but fear of retribution for a specific action by Mr Casimiro – ie telling police that Mr Pinto had confessed to stabbing the victim (and the other matters in the interview).
Further, I agree with Mr Thomas that these statements carry some risk of being misused by the jury, even if only subconsciously, as evidence that Mr Pinto is a violent vengeful person, thereby occasioning unfair prejudice to Mr Pinto, notwithstanding that they will be warned that nothing in the interview is evidence against Mr Pinto. In my view, what little probative value these statements may have is substantially outweighed by the risk of unfair prejudice to Mr Pinto. Those statements will be excluded under UEA s 135.
Questions directed to Mr Casimiro relevant to common purpose
Counsel for Mr Pinto also objected to the following statements made by Mr Casimiro, on page 15 of the transcript on the ground that they were mere speculation.
· Q: Um – did you think, so after that altercation in Monsoons when you left, did you think it was possible that he would use the knife in a fight again after that? A: No. I – I – I didn’t think so, not – not – not the way he did, no. … Q: But you thought that if he was gonna fight someone that he might use the butt again? A: No I didn’t even think that sir – ah – yeah I didn’t even think that, yeah.”
I do not agree. The questions and answers concern Mr Casimiro’s state of mind at the relevant time – ie just before the stabbing occurred - and are directly relevant to the Crown’s case on common purpose. They form an integral part of Mr Casimiro’s exculpatory account of events. Nor is this passage potentially prejudicial to Mr Pinto. This passage will be admitted.
Assertion that Mr Pinto said he had bashed “the guy in Monsoons” with the butt of his knife
Mr Thomas for Mr Pinto objects to the underlined parts of the following statement on page 5 of the transcript:
Whilst we were walking down the end of the lane, near – near Peel Street, Pinto was telling me how he bashed the guy in Monsoons and how he, and – and he told me that he bashed him with the butt of his knife.
The Crown does not object to this part of the interview, contending that it is direct evidence of a conversation between Mr Pinto and Mr Casimiro, and so in a different category to the other statements objected to by the Crown.
Mr Adams for Mr Casimiro contends that this evidence is very important. It is a key part of Mr Casimiro’s account to police of how he says the events unfolded on that night – essentially a key part of Mr Casimiro’s exculpatory explanation. I accept that that is the case. (That conversation is said to have led to Mr Casimiro taking out his own knife and playing with it, explaining why his knife was out of his pocket and in a position to have the victim’s blood on it.)
Applying the test in s 135, I do not think it can be said that the probative value of this evidence in Mr Casimiro’s case is substantially outweighed by the risk of unfair prejudice to Mr Pinto.
(a)Given that the assessment of probative value must be made on the assumption that the jury accepts the evidence,[17] the probative value in Mr Casimiro’s case must be assessed as high.
(b)The possible prejudice to Mr Pinto from this evidence is not as high as from other statements made by Mr Casimiro in the interview which have not been objected to, and the risk of any additional prejudice as a result of this statement going before the jury is not great.
(c)In my view, the direction to the jury that nothing said by Mr Casimiro in the interview can be used as evidence against Mr Pinto is likely to overcome any such potential prejudice.
If I am wrong about the inapplicability of s 137, I add that I do not think the test in s 137 is satisfied either.
Should there be separate trials?
At the hearing of the voir dire, counsel for Mr Casimiro, Mr Adams, suggested that if there was any prejudice to Mr Pinto as a result of the tender of the interview, or those parts of it which have been objected to, the remedy would not be to exclude the evidence but to order separate trials.
There is no application before me for separate trials and it would not be proper for me to reach a position on that question unless and until such an application is made and submissions received from all parties. However, the prima facie rule is that there should be joint trials where co-accused are accused of committing a crime jointly, and that prima facie rule is not easily displaced.[18] The prospect that evidence of bad character of an accused may be led by a co-accused does not, of itself, justify a separate trial,[19] and where each accused blames the other, separate trials should ordinarily not be granted. In Webb v The Queen,[20] Toohey J (with whom Mason CJ and McHugh J agreed) respectfully agreed with a statement by King CJ that there are “strong reasons of principle and policy why persons charged with committing an offence jointly ought to be tried together” and that “that is particularly so where each seeks to cast the blame on the other.”
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[1] The English decision of R v Pearce (1979) 69 Cr App R 365 which held that even largely self-serving statements made by an accused to police are admissible in England said this of such statements at [31]: “Although in practice most statements are given in evidence even when they are largely self-serving, there may be a rare occasion when an accused produces a carefully prepared written statement to the police, with a view to it being made part of the prosecution evidence. The trial judge would plainly exclude such a statement as inadmissible.”
[2]Singh v The Queen [2019] NTCCA 8 and the cases cited therein at [13]
[3]I have been unable to find any authority directly on point. Odgers does not consider the issue; nor do John Anderson and Peter Bayne, Uniform Evidence Law, Text and Essential Cases (Federation Press, 3rd ed, 2016) (“Anderson & Bayne”). The discussion of “Unfair prejudice” at p 102 of Anderson & Bayne, talks about “whether the reception of a piece of evidence will render the trial unfair from the point of view of a party”, but that discussion concerns the concept of unfair prejudice in both ss 135 and 137. Williams, Anderson, Marychurch and Roy, Uniform Evidence in Australia (LexisNexis Butterworths, 2nd ed, 2017) does not consider the issue.
[4] [1972] VR 939
[5] In that case two co-accused were charged with the sadistic and apparently motiveless murder of a young girl. It was clear on the evidence that one or the other of them had killed the girl or that they had done so together. Each gave evidence that it was the other who had killed her. One co-accused (King) called psychiatric evidence that Lowery was a psychopathic personality with sadistic traits and that King was less so and an immature youth likely to be led and dominated by more aggressive men. The Full Court held that the evidence had been rightly received and that its probative value was not so weak compared to the prejudicial effect on Lowery as to require the judge to exclude it.
[6] [1983] 2 VR 155, 168. In that case it was held that the trial judge was wrong not to permit defence counsel to cross-examine a witness about the propensity and reputation for violence of a co-accused.
[7] [1989] 1 AC 288. In that case, three co-accused were charged with forgery with intent to defraud. The first defendant made a statement to police. The prosecution sought to adduce the statement in evidence against the first defendant but the trial judge excluded it on the ground that it was not voluntary. The first defendant gave evidence and counsel for the third co-accused (the appellant) unsuccessfully sought leave to cross-examine the first defendant on the excluded statement. The Privy Council held that leave had been wrongly refused.
[8][1952] 2 All ER 667, 668-669
[9] It is interesting to note that the Privy Council saw the principle that it is not permissible to enquire into the character of an accused as being based on relevance, not prejudice; and the Full Court of the Supreme Court of Victoria saw it as based on fairness, not relevance.
[10] None of the texts referred to above has anything to say about a situation in which the party adducing the evidence is not the one relying on it.
[11] Further, if Mr Casimiro were to give evidence (and there is nothing to stop him from doing so), he would be permitted to give any evidence relevant to his defence no matter how prejudicial it may be to Mr Pinto – and if he did so, it would be evidence against Mr Pinto. As it is, the jury will be directed that nothing said by Mr Casimiro in the interview can be evidence against Mr Pinto.
[12] Section 135 is not as favourable to a defendant as s 137. Section 137 provides for mandatory exclusion of evidence, rather than discretionary as in s 135 and the test for exclusion only requires the probative value to be outweighed by the danger of unfair prejudice as distinct from “substantially outweighed” as provided for in s 135.
[13] Mr Adams has requested the prosecution to obtain a statement from the third party referred to and the prosecution has agreed to attempt to do so.
[14] Evidence is not unfairly prejudicial merely because it makes it more likely that an accused will be convicted. (Papakosmas v The Queen (1999) 196 CLR 297 at [91]) What is required is the existence of a real possibility that the jury will use the evidence improperly in some unfair way. (R v Bauer (2018) 92 ALJR 846 at [73])
[15] Aytugrul v The Queen (2012) 247 CLR 170, 185-186 at [30]; Odgers 252-253 at [EA.137.120]
[16]He also referred (on page 14) to Pinto “just givin’ it to him with a bunch of uppercuts and all – all the rest of it.”
[17] IMM v The Queen (2016) 257 CLR 300, 313-314 - per French CJ, Kiefel, Bell and Keane JJ at [43]-[45]
[18] R v Holden (1990) 52 A Crim R 32 per Perry J (with whom King CJ agreed) at p 44;
[19] R vGibb and McKenzie [1982] 7 A Crim R 385
[20] (1994) 181 CLR 41
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