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Supreme Court of Victoria |
Last Updated: 17 September 2010
AT WANGARRATA
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JUDGE:
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WHERE HELD:
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Wangaratta
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DATE OF RULING:
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CASE MAY BE CITED AS:
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CRIMINAL LAW – Evidence – Limiting use of evidence – s.60, 136, 192 Evidence Act 2008 – Use of witnesses’ statements – Witness apparently illiterate – Prejudicial and probative value – Application refused.
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APPEARANCES:
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Counsel
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Solicitors
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For the Crown
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Mr A Tinney SC
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Office of Public Prosecutions
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For the Accused
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Mr S Langslow
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Kerry Clancy Solicitors
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1 The accused man Christopher Robert Docking is charged with the manslaughter of Michael Miller. The prosecution allege that in the early hours of 8 May 2009, the accused went to the home of Mr Miller in Murray Street, Yarrawonga following what he, the accused, understood to have been a dispute between Michael Miller and the daughter of the accused, Louise Docking. Louise Docking was not called as a witness in the trial.
2 The prosecution allege that once inside Mr Miller’s home, the accused assaulted the deceased with his fists including punching him to the right temple which caused a fracture of that part of the deceased’s skull. That fracture appears to have caused a rupture of the middle meningeal artery. The resulting bleeding caused a build up of pressure within the skull acting on the brain, ultimately causing catastrophic brain injury.
3 In the running of the trial, two issues have arisen. First there is an issue of causation and whether a suggested failure in the medical treatment afforded to the deceased at Yarrawonga Hospital effectively broke the chain of causation. The second issue raised is self defence. The accused has given evidence before me that he went to the premises of Mr Miller to discuss an earlier incident involving his daughter and that at a particular point in the conversation, the deceased struck him to the forehead. As a result the accused said that he reacted by punching the deceased about the head, believing that to be necessary to defend himself.
4 At the time that this application was made, the trial had been running for eight days and counsel’s final addresses were about to commence. Mr Langslow, who appears for the accused, raised the issue of the manner in which two prosecution witnesses, Ms Rebecca Hurst and Mr Macka Klinge, were examined by the prosecutor, Mr Tinney SC, and what use could be made of those witnesses’ statements when they were questioned by the prosecutor.
5 On 30 August 2010, on an application on behalf of the prosecution, I ruled pursuant to s 38 of the Evidence Act 2008 that Mr Tinney be permitted to cross-examine both witnesses as to what they had said in statements to police on important matters concerning what the accused did and said and the time of the incident involving Mr Miller [see transcript at 138 and 171]. I should note that in the case of Mr Klinge, he was not necessarily prepared to admit that what was read to him by Mr Tinney was in his statement because he said he could not remember what he had said. There was also the further matter that in his case he said he could not read thus the statement had to be read back to him before he signed it.
6 Pursuant to s 60(1) of the Evidence Act 2008, the contents of the witnesses’ statements are admissible as evidence of the facts stated therein.
7 In this application, however, Mr Langslow has applied that I restrict the use that can be made of the statements that were put to Mr Klinge and Ms Hurst, although particularly Mr Klinge whose statement was the subject of separate proof from the informant Mr Sorrell due to his apparent illiteracy. As I understood Mr Langslow’s final position, he sought to have the contents of the statements restricted to being used only as evidence affecting the credibility of Mr Klinge and Ms Hurst pursuant to s 136 of the Act. Mr Langslow further sought that I direct the jury that such evidence was not able to be used by them as evidence of the facts therein asserted.
8 As Mr Tinney accepted, section 136 of the Evidence Act permits the Court to limit the use to be made of evidence if there is a danger that the use of the evidence might be unfairly prejudicial to (the accused) or be misleading or confusing.
9 As I noted in ruling on the applications under s 38 of the Evidence Act, these two witnesses seemed to me to be both witnesses who were not making a genuine attempt to give evidence. Their failure of memory mainly affected those parts of their statements where they had informed the police of aspects of the conversations they had had with the accused on the night and early morning of the confrontation with Mr Miller. In addition, their respective reasons for their memory failure were similar and, it transpired, they had been together the evening before they were called at prosecution witnesses in this trial.
10 In considering whether there is a reason to limit the use of the prior statements of these two witnesses, the probative value of the evidence is to be considered. It is relevant to note that these statements were made on the day after the events they described and it can be assumed the events they related were fresh in their minds notwithstanding that at least in case of Klinge, significant amounts of alcohol were being consumed. In the statement of Ms Hurst she described the demeanour of the accused after the incident had occurred as “hyper acting” and then recounts that the accused said “I went around and gave it to him”. She also told police that the accused said he “..did my hands again” referring to injuring his hands and exacerbating a pre-existing injury.
11 In his police statement about which he was questioned by Mr Tinney, Mr Klinge said that prior to the incident the accused had said that he “...wanted to go and give a bloke a clip” in connection with an incident involving his daughter. After further discussion in which Mr Klinge sought to dissuade the accused from doing that he said, “No, fuck it, I want to give him a clip”. He also described the demeanour of the accused as angry and that after a period of time during which the prosecution assert that the accused struck the deceased, Mr Klinge described him as “pissed and really hypo”.
12 In addition, the application was made after the accused was cross-examined about whether or not Ms Hurst and Mr Klinge were correct when they described what they did to the police. During cross examination[1] the following cross-examination occurred:
Q: Well you remember the evidence of Mr Klinge, I presume, in this court, do you?A: Yeah, I think so.
Q: By the way, this term "clip" that is something that you were in the habit of using as an expression, is that right?
A: Well if we played up as kids, dad would say "I'll give you a clip in the ear" or wasn't - - -
Q: But it's a term that you used to use back at that time in 2009?
A: Well, I use it sometimes, yeah.
Q: And you used it when you were at Mr Klinge's house on that night, didn't you?
A: Possibly.
Q: Do you remember Mr Klinge being asked some questions by me when I read out some parts of his statement that he'd made to the police?
A: Yeah.
Q: You remember that in the end there's been evidence in this court from the informant, Mr Sorrell, proving that those things that I read out to Mr Klinge were in the statement of Mr Klinge that he made to the police?
A: Yeah.
Q: I think you've indicated Mr Klinge was a friend of yours, is that right?
A: I hadn't known him for that long but yeah - - -
Q: And you know that he spoke to the police on the very day when this had happened, 8 May 2009, correct?
A: I do now, yeah.
And then later[2]:
Q: And in fact, that's the truth, isn't it, that you did say to Mr Klinge that you wanted to go and give the bloke a clip?A: I can't remember saying it but I may have said it.
Q: You don't dispute it, is that right?
A: That's right.
Q: And the bloke that you were talking about was, even though you didn't name him, Michael Miller, wasn't it?
A: That's right.
Q: This is well before you ran into George near your house, isn't it?
A: Yeah.
Q: There you were telling Mr Klinge that you were going to go and give Mr Miller a clip?
A: Yeah that was several hours earlier.
Q: But that wasn't talking about going and talking to him, was it, it was talking about going and assaulting him?
A: Well I said I wanted to find out what had happened, I'll probably give him a clip in the ear.
Q: That's not what Mr Klinge's statement said, it was about you going and giving a clip, wasn't it?
A: No, I just wanted to know what the argument was about.
Q: But I'm talking to you about what your friend said to the police in his statement in which he said, "Chris mentioned that he wanted to go and give a bloke a clip"?
A: That's what he's - - -
Q: And you've accepted that you don't dispute that you said that?
A: That's what he's said, yeah, I may have said that. I can't remember saying that but I may have said that.
Q: So no talk there about going and talking to someone and just finding out and then if you're not happy with his answer, giving him a clip, it's going and giving him a clip, isn't it?
A: Not necessarily, no.
Q: Well he tried to talk you out of it, didn't he?
A: Not that I can remember.
Q: Mr Klinge's statement indicated, "I told him not to worry about it. Christ said, 'Nah, fuck it, I want to give him a clip'. I told him again, 'Don't worry about it'. I thought he was saying it because he had been on the piss and was just being a bit of a show off. I didn't know if there was anyone that he wanted to hit." Now that's all true, isn't it?
A: Well, I probably was being a bit of a show off.
Q: But the other parts are true; he tried to talk you out of it, didn't he?
A: I can't remember him saying that, no.
Q: But you wouldn't be talked out of it, would you?
A: Well, I don't even remember him saying that.
Q: Sorry, what's happened to your good memory that permits you to remember exactly what order you hit Mr Miller in - - -?
A: Well, I - - -
Q: Just pardon me, and how many blows there were and where the blows landed and now you can't remember what happened back at Klinge's house beforehand; why is that?
A: I don't recall saying that. We were talking - talking about lots of things at Macka's house.
Q: But you do not dispute that you said that, do you?
A: I may have said that. I'm not saying I definitely didn't say it.
Further[3]:
Q: ...But there is evidence on which they could act that would indicate you did say that thing and you did refuse to be talked out of it and you do not dispute, do you, that that, indeed, may have been the true position?
A: I - I don't think that happened, no.
Q: You don't think it happened?
A: No.
Q: So you do dispute it now?
A: I suppose, yes.
Q: Do you; in spite of the fact that your friend said it to the police?
A: That's right.
Q: On the very day?
A: That's right.
Q: But anyway, you don't dispute that you said that you'd give a bloke a clip?
A: Um, I may have said it. I'm not saying I did. I'm not saying I didn't. I'm saying I may have said it.
Q: So what is it that you are disputing there; just that he tried to talk you out of it and that you wouldn't be talked out of it?
A: Well, I can't remember him saying anything about that. I - - -
Q: There's a big difference between you saying you can't remember it and you saying you dispute that it happened; which are you saying?
A: Well, I didn't - I didn't go around there for Mick.
Q: You did say, didn't you?
A: No, I didn't; he's a friend.
Q: That is the only reason why you went around there, isn't it?
A: No, that's not right.
Q: Mr Klinge in his statement said this - p.185. "Chris was fired up when he was talking about his daughter and what had happened. I could see by the look on his face that he was angry, but I still didn't think anything would happen"?
A: I was - - -
Q: And that's the truth, isn't it?
A: I was a bit upset that night, but not over that. It was because of something that my girlfriend's father had said to her on the phone.
......
Q: Now Mr Klinge went on to say a couple of hours after he got there - this is in your statement, "A couple of hours after he got there a bit after midnight he said he was going home to get some more beer. Chris left by himself to go home and Emma, Beck and I stayed at my house. Chris was gone for a bit over 30 minutes and then came back to my place"; now is it true that you at some stage that night told Mr Klinge that you were going home to get some more beer?
A: Possibly.
13 The following cross-examination of the accused occurred in relation to Ms Hurst’s evidence:
Q: Do you remember the evidence of Rebecca Hurst in this trial?A: Not really.
Q: There's nothing wrong with your memory is there?
A: I - I don't recall her saying much at all.
Q: In this trial?
A: Yeah.
Q: Well - - -?
A: I know she said she can't really remember and she's not well.
Q: She did say that, didn't she? But then you remember her - parts of her statement being read out to her and her agreeing that these were things that were in her statement and that they were true?
A: At the - - -
Q: In this court?
A: Yeah, I think so. I'm not a hundred percent sure but I think she said yes.
Q: One of the parts was this. "After Chris and Emma left, Macka and I stayed up and watched a movie. I'm not sure of the time but I was getting ready to go to bed and Chris came back to the house. He knocked on the door and Macka said, `Come in.'" Now, that's accurate is it?
A: Yeah, that's right.
Q: So, you were invited in by Macka?
A: Yep.
Q: And she went on to say in her statement and she agreed that this was something she said to the police and it was true. "He said something like, `I went around and gave it to him.' I took it to mean he had been and hit someone." It is the truth that you said that - - -?
A: I don't - - -
Q: - - -when you - - -?
A: I don't think I said, "I gave it to him." No.
Q: What did you say?
A: Off my memory I - um - said, "I went around to Mick's and sorted out what had happened with Lou."
Q: But not that you "gave it to him"?
A: Not - not off my memory.
Q: And she went on to say this in her statement, "He then showed Macka his hands. He said, `I did my hands again.' I saw that his right hand was swollen on one side on the middle one out and the other hand had a little bit of blood on after the ring finger or the little finger." That's the truth - that's accurate as well, isn't it?
A: Oh, it's possible.
Q: You showed that you had struck Mr Miller with both of your hands, hadn't you?
A: Yeah.
Q: And you showed those hands to Macka to show him the injuries that you had done to yourself by hitting that man?
A: Possibly but me right hand was already buggered.
Q: Well, it didn't stop you from using it again, did it?
A: I had no choice.
Q: You hit him very hard with your right hand did you?
A: No.
Q: And you hit him very hard to your left - with the left hand did you?
A: No.
14 In that cross examination, whilst some doubts were raised as to some aspects, there was no definitive denial that the events and conversation Klinge and Hurst described in their statements did not occur or were not said. Indeed neither witness was cross-examined on behalf of the accused to the effect that their descriptions to the police were false. In my opinion this evidence is highly probative and the conversations related by these witnesses were directly probative to the claim that the accused has made in his evidence that he struck the deceased in self defence, not having gone to assault him as the prosecution has alleged.
15 Mr Langslow has raised the inconsistency which he says exists between the statements to police of Ms Hurst and that of her former partner Mr Klinge. His submission was that the jury might be selective in the way they used the statements with a view to favouring the prosecution and reaching a conclusion based on the account most adverse to the accused.
16 There is no reason to believe that will occur and Mr Langslow’s submission does no more than highlight some level of conflict on the evidence. There are other substantial conflicts on the evidence which the jury will be required to resolve and I see no reason to think they will be selective in the way suggested.
17 The statements of the witnesses go directly to facts in issue in this case, not just to the credibility of the witnesses. The statements are relevant both to what the accused said he was going to do, how long he was gone and how he appeared after the events involving Mr Miller as well as what he said about the events afterwards.
18 Both witnesses have been examined and cross-examined about the events and there could be nothing misleading about the evidence. The jury know that these witnesses told the police about matters which directly involved what the accused said and did and which they now claim they cannot remember.
19 In deciding this application, I am also required to consider whether there are any matters from s 192 of the Evidence Act which I should take into account. In my view the only two that are relevant considerations in this application are those set out in s 192(b) and 192(c). As to the former, it would be clear from my reasons that there is no unfairness about refusing this application. Likewise as to the latter, it is also clear that the evidence which is contained in the statements of the two witnesses is important because it is probative of one the two central issues in the trial.
20 I am therefore unable to see any reason to limit the use of the evidence and therefore I have refused Mr Langslow’s application.
CERTIFICATE
I certify that this and the 9 preceding pages are a true copy of the reasons for Ruling of Lasry J of the Supreme Court of Victoria delivered on 8 September 2010.
DATED this eighth day of September 2010.
[1] Transcript at page 601
[2] Transcript at page 602
[3] Transcript at page 605
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