The State of Western Australia v Martinez
[2006] WASC 114
THE STATE OF WESTERN AUSTRALIA -v- MARTINEZ & ORS [2006] WASC 114
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASC 114 | |
| Case No: | INS:150/2004 | 24 MARCH 2006 | |
| Coram: | EM HEENAN J | 24/03/06 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Application for witnesses to be called by Judge refused | ||
| B | |||
| PDF Version |
| Parties: | THE STATE OF WESTERN AUSTRALIA JOSE FELIX MARTINEZ SALVATORE FAZZARI CARLOS PEREIRAS |
Catchwords: | Criminal law Procedure Retrial Prosecution declining to call witness named in indictment, or to tender witness for cross-examination Witness named on indictment and called by prosecution at first trial Application by accused for witness to be called by prosecution or by court |
Legislation: | Nil |
Case References: | R v Apostilides (1984) 154 CLR 563 Skubevski v The Queen [1977] WAR 129 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Prosecutor
AND
JOSE FELIX MARTINEZ
SALVATORE FAZZARI
CARLOS PEREIRAS
Accused
Catchwords:
Criminal law - Procedure - Retrial - Prosecution declining to call witness named in indictment, or to tender witness for cross-examination - Witness named on indictment and called by prosecution at first trial - Application by accused for witness to be called by prosecution or by court
Legislation:
Nil
Result:
Application for witnesses to be called by Judge refused
(Page 2)
Category: B
Representation:
Counsel:
Prosecutor : Mr B Fiannaca SC & Mr S F Rafferty
First-named Accused : Mr S B Watters
Second-named Accused : Mr M J McCusker QC & Mr M J Bowden
Third-named Accused : Mr S D Freitag
Solicitors:
Prosecutor : State Director of Public Prosecutions
First-named Accused : Legal Aid Western Australia
Second-named Accused : Cannon Bowden & Co
Third-named Accused : Legal Aid Western Australia
Case(s) referred to in judgment(s):
R v Apostilides (1984) 154 CLR 563
Skubevski v The Queen [1977] WAR 129
Case(s) also cited:
Nil
(Page 3)
1 EM HEENAN J: I have been hearing submissions in the absence of the jury as to whether or not I should, at a point later in the case, call Toby Vangelovski and Lorena Rodriguez in the event that neither is called as a witness for the prosecution. The application, by counsel for Mr Fazzari, supported by counsel for Mr Martinez and Mr Pereiras, is that in view of the avowed intention by the prosecution not to call either witness, I should call both witnesses and make them available for cross-examination by counsel for each accused. It needs to be added that Ms Rodriguez is a witness whose name is listed on the indictment. Ms Rodriguez was called by the prosecution at the previous trial. Mr Vangelovski was called by one of the accused.
2 The potential significance of their evidence is that each was in the red maroon car which was travelling in proximity with the white Commodore with the three accused and Mr Magistro on the evening of 27 and 28 February 1998. In particular the red maroon car was involved in a number of the manoeuvres on Cedric Street at about the time the bottle was thrown, after the girls had been picked up and when the foot chase from the Stirling council offices area towards the kiss'n'ride station was in process.
3 The red maroon car followed the white car, on the evidence, into the kiss'n'ride station a few seconds before the chase up the steps to the overhead footpath on the occasion when the two men, Toogood and Betts, made their successful escape. Both Vangelovski and Rodriguez were present at the initial assault of Phillip Walsham at the kiss'n'ride station and, according to the evidence, contained in the video records of interview from each accused, the red car followed the white Commodore to the intersection of Odin Road and Fulmar Streets where both stopped and there was some conversation between the occupants of the two vehicles about what had happened and associated matters.
4 The duration of the stop at the Odin Road, Fulmar Street intersection has the potential to be quite significant in this case because the longer it is, the less is the possibility of the white car and the occupants returning to the Stirling train station to enable a further assault on the deceased leading to his fall from the bridge to have happened within the time frame established by other events. These other events are: the witnessing of the fall of the body by Ms Clare Pigliardo; the rapid return of the Pigliardo family to their home in Woodlands; the emergency call to the 000 number which was timed at a precise moment; and emergency calls from attending taxi drivers who also came upon the body soon afterwards.
(Page 4)
5 The substance of the application for the accused is that the evidence of Ms Rodriguez and of Mr Vangelovski would tend to establish that there was insufficient time for any of the accused to have returned to the scene and to have committed the offence in the manner alleged by the prosecution. Having demanded that the prosecution call these two witnesses, and being met with a refusal to do so because of the expression of a view formed by the prosecution that neither is a reliable witness, counsel submit that I should call both witnesses and tender each for cross-examination because the situation is within the fifth rule identified by the High Court of Australia in the unanimous judgment of Gibbs CJ, Mason, Murphy, Wilson and Dawson JJ in R v Apostilides (1984) 154 CLR 563 and in particular at 575.
6 Before proceeding further to consider this submission I think I should acknowledge that I have no power to direct that the State prosecutor should call either of these witnesses. That proposition is acknowledged by all parties and is founded upon the decisions in Apostilides and in Skubevski v The Queen [1977] WAR 129, a case of some prominence in this State.
7 As to point 5 of the propositions in Apostilides their Honours said at 576:
"In the formulation of the fifth proposition we have allowed for the possibility that circumstances may arise when the trial judge will be constrained to call a person to testify. The circumstances which would justify such a course would be rare. It is clear to us that more would be required to establish 'most exceptional circumstances' than the refusal of the prosecutor, for reasons which the judge thinks insufficient, to call a witness."
8 Their Honours then go on to examine the consequences of that conclusion and the reasons which had led to it.
9 In this present case it is urged that the exceptional circumstances include or constitute a combination of these factors: firstly, that without either or both of those witnesses there would be an incomplete version of what happened during a critical stage of the night in question. That may be so, but there would not be a complete void because there is already evidence before the court in the video records of interview of each of the accused that during this interval both cars, and by that I mean the white Commodore with the three accused and a fourth man and the maroon Commodore with Vangelovski and Rodriguez, went through the back
(Page 5)
- streets of Stirling to the intersection of Odin and Fulmar Streets and there are reasonably precise accounts of the route taken on that journey. There is also evidence in the video records of interview that there was a conversation between the occupants of both cars when they were stationary at that point, that some of the occupants got out, that Ms Rodriguez was very distressed, that there was some kind of argument going on between herself, Mr Vangelovski and Mr Fazzari, that she ran down the street, that there was conversation about the reasons for her distress and the possibility of reassuring her and that while she was still in an agitated condition the Commodore with its four occupants left, leaving her and Vangelovski behind.
10 So there would not be a complete void and I am by no means persuaded that it is essential that either or both of those witnesses be called in order to provide evidence of some critical stage in the night's events which would otherwise be unexplained.
11 The next argument in support of the application that either or both witnesses should be called by me as presiding Judge is that failure to do so would result in an unfair situation leading to a potential miscarriage of justice, in that counsel for the accused would then be in a position where they would be forced to decide whether or not to call either or both of those witnesses. If counsel then called either witness that would expose each witness under cross-examination to the hostile approach from the prosecution. That may not only discredit the testimony of the witness but might elicit evidence which would be positive incrimination of one or more of the accused. If that were to happen there would be no effective counter to the incriminating evidence because of the absence of any right of cross-examination by counsel for the accused who called the witness - in short the kind of situation which would put an Apostilides episode into the rare category of exceptional circumstances.
12 The possibility of this happening also emerges from an examination of the different roles of the three accused because counsel for one accused may call the witness and cross-examination may lead to incrimination, not of that accused, but of others. What is the position of counsel for the other accused in that situation? There are many combinations and permutations which could emerge depending upon the way the evidence unfolded. It is enough, at present, to recognise that a situation could occur where the calling of one or both of these witnesses by counsel for one of the accused could lead to the incrimination, not of himself, but of another accused.
(Page 6)
13 However, it is by no means certain that that will, or must, eventuate. Indeed, if the apprehensions of the parties and the indication of the evidence given by these two witnesses on previous occasions is anything to go by, the likelihood is that the evidence of one or both of these witnesses will assist, rather than damage, the case for each accused. I do not consider that I can, or should, draw any conclusions as to the ultimate effect of this evidence unless and until it is actually adduced.
14 The possible consequence for the evidence resulting from this procedure to be inadvertently damaging for the accused or for other accused is the reason why earlier in discussions with counsel, I made the observation that the opportunity for correction of any injustice or unfairness from these procedures may, in many if not most such cases, only be available after the event and then to any Court of Appeal reviewing this situation, as in fact occurred in Apostilides (supra). That is not a reassuring prospect when the presiding Judge's prime consideration is to ensure a fair and just trial but it does seem to be one of the oddities of the situation which could arise.
15 As such it adds an additional dimension to the responsibility of counsel for the prosecution when deciding whether or not to decline to call any individual witness. I make that observation not out of any intention to stress the heavy responsibility of decision on counsel for the prosecution nor to imply that it has been taken with anything other than the most meticulous attention given to all relevant, and only relevant, criteria but rather to indicate that the choice of witnesses to call is not any part of the function of the presiding Judge.
16 Another feature which it is submitted puts the present position into the extraordinary category is that leaving the situation in the position where if the witness is to be called he or she can be called by counsel for the accused only is to, in effect, place the burden of proof or at least an evidentiary burden of proof upon the accused when always the onus and burden of proof lies on the prosecution. I can see how that view may have developed but I do not accept that submission. In many cases, it will be a difficult decision for a counsel for an accused person to decide whether or not to call evidence or whether or not the accused himself should give evidence and that can often arise in a situation where the failure to call the accused means that certain evidence or inferences arising from evidence for the prosecution is left unanswered. That does not mean that there is any change in the burden of proof. It just means that a difficult forensic decision has to be made by counsel about whether or not his client will go into evidence.
(Page 7)
17 In the present situation I can see the potential for the absence of Ms Rodriguez and/or Mr Vangelovski from the ranks of witnesses for the prosecution, in certain eventualities, as possibly giving rise to some of these problems, but it is by no means certain that it will. Indeed, there is reason to suppose that it may not turn out that way if their evidence follows the course of the evidence which they have given previously.
18 I do not consider that in this state of uncertainty there is any justification for me concluding that this is an exceptional situation requiring the trial Judge to call either witness and I will not at this stage of the case make any such decision or give any such direction. Accordingly, I refuse this application to direct that either or both of those witnesses be called by the court rather than by the prosecution.
19 That is not to say that the application cannot be renewed if there is a material change in circumstances between now and the end of the prosecution case, but I cannot envisage that at present.
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