The State of Western Australia v Houston
[2015] WASC 174
•20 MAY 2015
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- HOUSTON [2015] WASC 174
CORAM: HALL J
HEARD: 12 MAY 2015
DELIVERED : 12 MAY 2015
PUBLISHED : 20 MAY 2015
FILE NO/S: INS 232 of 2014
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
JOSEPH ROBERT HOUSTON
Defence
Catchwords:
Criminal law - Ruling on whether evidence of what prosecution witness told police is admissible other than as a prior inconsistent statement - Relevant to actions taken by police - Whether hearsay
Legislation:
Nil
Result:
Evidence ruled admissible
Category: B
Representation:
Counsel:
Prosecution : Mr J C Whalley & Mr B H Costello
Defence: Mr A E Eyers & Ms K Kumar
Solicitors:
Prosecution : Director of Public Prosecutions (WA)
Defence: Anthony Eyers
Case(s) referred to in judgment(s):
Harman v The State of Western Australia [2004] WASCA 230; (2004) 29 WAR 380
Nichols v The Queen [2005] HCA 1; (2005) 219 CLR 196
O'Meara v The State of Western Australia [2013] WASCA 228; (2013) 235 A Crim R 209
R v Welden (1977) 16 SASR 421
Subramaniam v Public Prosecutor [1956] 1 WLR 965
T (a child) v The Queen (1998) 20 WAR 130
Walton v The Queen [1989] HCA 9; (1989) 166 CLR 283
HALL J: On 12 May 2015, during the course of the trial in this matter, I made a ruling that evidence that the State wished to call from Detective Sergeant Scott Mills was admissible. I gave brief reasons and said that more detailed reasons would be published in due course.
The issue
The accused is charged with murder and causing grievous bodily harm with intent to cause such harm. The prosecution case is that the accused attended a party on the beach at Wedge Island on 31 December 2013 and that in the early hours of the morning of 1 January 2014 there was a fight involving a number of people. The State alleged that the accused obtained a machete and approached the deceased and struck him once with the machete causing a fatal injury. Shortly afterwards it is alleged that he struck another man with the machete resulting in the second charge.
Defence counsel, in opening, told the jury that the principal issue in the case is whether the accused was acting in self‑defence or defence of another. Where there is evidence sufficient to raise such an issue then the prosecution must exclude self‑defence beyond reasonable doubt. The elements of self‑defence are that the accused believed his act was necessary, that it was a reasonable response in the circumstances as he believed them to be and that his beliefs as to the necessity of his act and as to the circumstances were based on reasonable grounds.
The prosecution case is that the deceased was unarmed and not threatening harm to the accused when he was struck. Accordingly, it is said that the accused could not have believed that his action was necessary and, further, there were no reasonable grounds for any such belief. However, the accused maintains that the deceased was the aggressor and that he was acting in self‑defence. Whether or not the deceased was armed is relevant to whether the accused believed his act was necessary and whether that act was a reasonable response in the circumstances as he believed them to be.
There is no evidence from any prosecution witness that the deceased was armed. Indeed, a number of prosecution witnesses have given positive evidence that he was not. Nor is there any evidence of any weapon other than the machete used by the accused being found at the scene. The undisputed evidence in regards to the machete is that the accused was holding that weapon when he fled the scene and ran over some nearby dunes. The machete was subsequently found by police partially buried in the dunes. However, there is evidence from one prosecution witness that suggested the existence of a second knife at the scene.
The evidence of Ms Dunn
Anne‑Marie Dunn is a 32‑year‑old woman who was not a participant in the party but was in the area because she had gone to assist a friend whose four wheel drive was stuck nearby. She said that 15 or 20 minutes after the countdown to midnight she noticed that a group of young people started to get rowdy. She saw a man wearing a red top, who is alleged to have been the accused, fighting and then leave the group with a girl and move towards a car. She saw him grabbing something from inside the car, which she described as looking like a camping or hunting knife. She then saw the man move back towards the crowd and, as he approached, people were screaming out 'Knife'.
Ms Dunn said that she followed the man in the red top and saw him approach another man wearing black and strike him with a slashing motion. She said that the man in red sprinted up to the other man, who was not moving and was standing with his forearms down to his sides. The other man, who must be the deceased, was facing Ms Dunn and she said that she was certain he was not holding anything in his hands. The deceased fell to the ground and Ms Dunn said that she went over to give first aid.
Ms Dunn then gave the following evidence:
And the knife when I got there was there. I cordoned off the knife so that nobody else touched it.
The knife?---Well, the police got the knife. When I got there I - I didn't actually see the knife slice him, but when I got there, the knife was there and the cover was there for the knife and that was all moved to the side so that nobody touched that.
This evidence regarding seeing a knife on the ground was not responsive to any question asked by the prosecutor. Rather it was volunteered by the witness. Nor was it consistent with Ms Dunn's witness statement. In that statement she referred to there being a sheath or cover on the ground but did not refer to a knife.
It is important to note at this point that a police examination of the scene did locate a sheath or cover for the machete in close proximity to the body of the deceased. No weapon other than the machete was located by police. As I have noted, the machete was not found near to the deceased but some distance away in the dunes. On the uncontested evidence the accused used the machete to strike the deceased and then carried it from the scene to the dunes. Accordingly, it is not possible for Ms Dunn to have seen the machete on the ground in close proximity to the deceased when she was rendering first aid. This raises a possibility that she saw a second weapon.
A little later in her evidence‑in‑chief Ms Dunn was asked further questions regarding what she saw in the vicinity of the deceased. She confirmed that she saw the cover and then said:
I kept both close by and then put a thing around them so that nobody went near them as being got ready for the helicopter's landing in. Beside that, yeah, there was a big black cover and a knife. They both - the cops should have gotten both of them.
Excuse me a moment. Did you - that knife that you say you saw, did you see where that had come from?---No.
What did it look like?---To me, a big fishing knife. I know a lot of people were yelling afterwards 'a machete, machete', but when I think of machete I think of Freddy Kruger and a big long thing with a big end like this, it's not what I found at the scene, it was a fishing knife like what my dad would have for gutting and cleaning fish for or for when you're four wheel driving, it's about this big, it's got little zigzags on one side and then a nice big blade on the other side, it was not a machete.
And what did you do with that?---It would have been put about four foot from this boy's head, sorry, I've tried not - to remember names, it's a bit (indistinct).
But you didn't see where that had come from?---No.
And when the person in black was being approached do you say he had anything in his hands?---Nothing.
But he had nothing in his hands?---Nothing.
To the point where he was being - you saw that motion from the red shirted man, did you see the black shirted man with anything in his hands at that point?---No.
In cross‑examination Ms Dunn confirmed that she was certain that the deceased had nothing in his hands when he was approached by the accused. She was then reminded of the evidence that she had given in chief in regards to seeing a knife on the ground. She was asked to estimate the length of the knife and said that she had had a stroke and was not 'too good with numbers'. She then said that another man had helped her on the night, who she named as 'Chris'. She said that she and Chris had put rocks or bottles around the knife to preserve it for the police. She said that the knife was 'covered in blood'. When shown a photograph of the machete she said that that was not the knife that she saw on the ground. She said that there was also another girl present named 'Anne' and 'we all knew that they were there' (being a reference to the knife and the cover).
In re‑examination Ms Dunn said that she spoke to police about an hour and a half later. She said that she sat in a four wheel drive with a police officer and gave a statement. She said the knife was still in the same position at this time and that she pointed out the knife and the cover to the police officer.
The proposal to call Sergeant Mills
Following Ms Dunn's evidence the State advised that it intended to call the police officer who had interviewed Ms Dunn at the scene. This officer, Detective Sergeant Scott Mills, had not originally been included in the State's schedule of proposed witnesses.
In a statement Sergeant Mills confirmed that he had attended the scene with other police officers on the morning of 1 January 2014 and, amongst other things, had interviewed Ms Dunn. He made notes of the conversation which were signed by Ms Dunn. Those notes extend over five pages and are detailed. Towards the end of the notes the following appears:
When I was there I saw the cover of the machete on the ground near the guy who had been cut. I actually flicked the cover away with my foot and asked a girl to stand guard over it until police arrived.
There is no reference in the notes to Ms Dunn saying that she had seen a knife on the ground near to the deceased. Sergeant Mills is able to give evidence that she did not say anything about a knife to him.
The State says that Sergeant Mills' evidence is relevant to a fact in issue, namely whether there was a knife at the scene as described by Ms Dunn. It was submitted that the purpose of the evidence was not to undermine the credit of Ms Dunn. Rather, it was suggested that the evidence was admissible because if the jury accepts that Ms Dunn did not mention a knife to the police officer when spoken to immediately after the incident, then that could rationally affect the jury's assessment of whether there was, in fact, a knife and hence whether or not she is mistaken about that detail. It was also submitted that if the jury did not hear from Sergeant Mills they would be baffled as to why a second weapon was not found or searched for. The actions and thoroughness of the police investigation would be called into question. The State also submitted that there was no hearsay issue because nothing said by Ms Dunn to Sergeant Mills would be relied upon for the truth of its contents. The relevance of the evidence was said to arise from what was not said rather than what was said.
Defence counsel objects on the grounds that what the State is seeking to do is lead evidence of a prior inconsistent statement by a State witness. The Evidence Act 1906 (WA) provides for the procedure to be followed where an inconsistent statement is to be adduced. That procedure has not been followed in this case because no application was made to have Ms Dunn declared a hostile witness. In these circumstances the prosecution was stuck with the answers that its witness had given and could not controvert them by calling other evidence. Defence counsel submitted that the true purpose of the evidence was to undermine the credibility of Ms Dunn and to rely on the truth of what was said to Sergeant Mills that, by implication, there was a knife cover on the ground but no knife.
Relevant law
A party is not permitted to impeach the credit of a witness called by that party by general evidence of bad character, but can adduce evidence to contradict the witness if the trial judge is of the opinion that the witness is hostile: s 20 Evidence Act 1906 (WA). A hostile witness can be cross‑examined on a prior inconsistent statement and, if the witness does not admit that such a statement was made, evidence may be called to prove the statement: s 21 Evidence Act. A procedure is set out by s 22 of the Evidence Act for adducing a prior inconsistent statement. The admissibility of a prior inconsistent statement is an exception to the collateral evidence rule: O'Meara v The State of Western Australia [2013] WASCA 228; (2013) 235 A Crim R 209.
The collateral evidence rule is that answers given by a witness to questions put to him or her in cross‑examination concerning collateral matters are final. Those answers cannot be contradicted or rebutted by other evidence. Collateral facts are facts which are not facts in issue between the parties or facts relevant to facts in issue. In most cases a fact that relates only to credibility is collateral and cannot be rebutted: Nichols v The Queen [2005] HCA 1; (2005) 219 CLR 196 [38] (McHugh J).
Whilst the collateral evidence rule is expressed as applying to cross‑examination, the rationale underpinning it applies equally to a party seeking to undermine the credibility of that party's own witness. Thus, if the only relevance of evidence is to undermine the credibility of another witness it would be inadmissible (subject to s 20 and other exceptions to the rule, see Cross on Evidence (10th Aust ed) [17590]). However, there is no rule that prevents a party from calling witnesses who give inconsistent accounts of events: Harman v The State of Western Australia [2004] WASCA 230; (2004) 29 WAR 380 [110] (Steytler J). Nor is it the case that a party is prohibited from submitting that the court should prefer the evidence of one of its witnesses over that of another: R v Welden (1977) 16 SASR 421, 427, 435, 443.
Evidence of what another person said is hearsay and will generally be inadmissible unless it falls within one of the exceptions to that rule. However, evidence of this type is admissible if it is adduced to establish the fact that a statement was made rather than the truth of the statement: Subramaniam v Public Prosecutor [1956] 1 WLR 965, 970. This is because in some cases the fact that something was said may be relevant irrespective of whether it is true. In Subramaniam the appellant was charged with being in possession of firearms without lawful excuse and his defence was that he was acting under duress due to threats made to him by Malayan terrorists. The trial judge excluded the evidence as hearsay. On appeal the exclusion was held to be wrong because the evidence was admissible as original evidence relevant to the state of mind of the appellant. See also Walton v The Queen [1989] HCA 9; (1989) 166 CLR 283, 300 ‑ 301 (Wilson, Dawson and Toohey JJ). The statements of a person made out of court may also be relevant in explaining why the person to whom they were made acted as he did.
In T (a child) v The Queen (1998) 20 WAR 130, 143 Ipp J said, in the context of evidence of statements made by a deceased woman regarding her relationship with the accused, that when determining the admissibility of such evidence considerations of prejudice arising out of the hearsay element of the evidence have to be balanced against the degree to which the evidence is otherwise relevant. Of course, the risk of prejudice can be guarded against by giving the jury appropriate directions.
Ruling
In my view the evidence is admissible because it is relevant in assessing what actions were taken by police on attending at the scene. If, as Ms Dunn said, there was a knife on the ground near to the deceased and it was still in that location when she pointed it out to a police officer, then the jury would expect that that police officer would have taken immediate steps to preserve such an item. It would also be expected that enquiries would be pursued with others who were in the vicinity, including those named by Ms Dunn, in regards to the existence, condition and location of such a knife. Further, it would be expected that police searches of the area would have been directed specifically to locating such a knife. Absent evidence from Sergeant Mills the jury would be left with the obvious and unanswered question as to why the police had not seized a knife if one had indeed been pointed out by Ms Dunn. In these circumstances the evidence of Sergeant Mills is admissible not as evidence of the truth of what Ms Dunn said but to explain the steps taken by the police to investigate the matter. This reinforces the reliability of the police evidence that no other weapon was found.
There is no hearsay issue in respect of the evidence as the prosecution do not rely upon the truth of anything said by Ms Dunn to Sergeant Mills. Rather the significance is not in anything that she did say but rather what she did not say. To the extent that there is any risk that the jury might misuse this evidence it is my view that a direction explaining how this evidence can be used will obviate any risk of unfairness.
The fact that the evidence of Sergeant Mills is, on one view, evidence of a prior inconsistent statement by Ms Dunn does not preclude its admission. That is not the basis on which the State has sought to admit the evidence and, indeed, it could not do so given that the requirements of s 20 to s 22 of the Evidence Act were not complied with.
Had Ms Dunn only given evidence of seeing a knife on the ground I doubt that the evidence of Sergeant Mills would be admissible. That is because the evidence would in those circumstances only be relevant to credibility. However, crucially, Ms Dunn's evidence went further when she said that not only was the knife on the ground in the location she described but that it was still in that location when she spoke to the police officers and that she pointed it out to the officer who she spoke to. If there was in fact a knife on the ground at that time and it was pointed out to Sergeant Mills it would be expected that he would have seen it and could give evidence to confirm its existence. However if Sergeant Mills' evidence is correct and Ms Dunn did not point out such a knife this would support the evidence that no other knife was found and, by inference, that the deceased was unarmed.
Accordingly, the evidence of Sergeant Mills is relevant, not as to the credibility of Ms Dunn, but to explain what actions were taken by police and, consequentially, whether there was or was not a knife on the ground when the police arrived at the scene. The evidence is relevant to a fact in issue at the trial and, thus, admissible.
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