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Supreme Court of Victoria |
Last Updated: 11 July 2018
AT MELBOURNE
CRIMINAL DIVISION
AND
S CR 2017 0112
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DIRECTOR OF PUBLIC PROSECUTIONS
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v
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SOFIA SAM
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JUDGE:
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COGHLAN JA
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WHERE HELD:
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Melbourne
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DATE OF HEARING:
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8, 9 and 14 November 2017
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DATE OF RULING:
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14 November 2017
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DATE OF REASONS:
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10 July 2018
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CASE MAY BE CITED AS:
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DPP v Kamalasanan (Ruling No 3)
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MEDIUM NEUTRAL CITATION:
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CRIMINAL LAW — Evidence — Admissibility — Murder — Hearsay — Representations made by child witness in audiovisual recorded interview of admissions made by accused — Where witness later resiled from representations — Application by prosecution to cross-examine witness — Prior inconsistent statements relevant only to credibility —Application refused — Evidence excluded — Evidence Act 2008 s 38, 81, 82 137 — Criminal Procedure Act 2009 s 368.
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APPEARANCES:
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Counsel
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Solicitors
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For the Director of Public Prosecutions
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Ms K E Judd QC with
Mr J H Shaw |
Mr J Cain, Solicitor for Public Prosecutions
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For the Accused Kamalasanan
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Mr P Tehan QC with
Mr A V Chernok |
James Dowsley & Associates
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For the Accused Sam
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Mr P J Hannebery with
Ms A J Burnnard |
Victoria Legal Aid
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1 Arun Kamalasanan and Sofia Sam have been charged with the murder of Sam Abraham. This ruling concerns the admissibility of the audiovisual recorded interview of the son of Sam Abraham and Sofia Sam, who will be referred to as ‘R’.
2 It was proposed that the prosecutor would lead in evidence the recorded interview conducted with R pursuant to s 368 of the Criminal Procedure Act 2009. He was seven years of age at the time the recording was made. The interview was conducted on 18 August 2016, that is about 10 months after the alleged murder of his father on 14 October 2015. R was then six years of age. In the interview, he was asked a number of questions relating to the night or morning on which his father died by Detective Senior Constable Tsivoglou, who is a prescribed person under the Criminal Procedure Regulations 2009.[1] Much of what he said was uncontroversial in the case against either his mother, Sam, or her co-accused, Kamalasanan.
3 The following questions and answers were of significance.
Q 105: Mm’hm·.A: And. - and then we - and then my friend came and talked with me. He had to go to an office so he only got to talk with me and he also bought some chocolate as well to give me and then - and then we and then then it was night-time so we had dinner, I don’t remember what·the dinner was and then we prayed and then I went - I walked to the master bedroom and slept and dad and mum v1as having a chat in the kitchen. After dad - dad - dad went to sleep and mum went to sleep as well. In the morning mum - mum woke up early. He was waking - ·she was waking up her dad and then dad was waking up so she thought my dad was awake. He was sleeping. She slept - she slept and she‘s - she s dad wasn’t still waking up. He was waking her up. Then dad wasn’t doing anything. She was so worried and she thought my dad died and then she waited for a minute and still my dad wasn‘t waking up so she - dad ‘s lips was bleeding and she put something in dad’s lips and she was trying to wake him up so - and then dad didn’t wake up then so the they cal1ed the cops and the ambulance and - cops and the ambulance and then we - and then we - and then we - and then my mum - I said, “What’s wrong, mum?” And mum - then I woke up, then I said, “What’s wrong, mum? And he said - she said my dad died so she gave - she gave me breakfast and some milk and - and she also - and I went outside to see my friend. My mum told me my friend was waiting outside, reading a book out there. His name is Esther. She was waiting outside reading a book. I played with her, we went to William’s house and I went to William’s house and -
Q 106: O.K.
A: Yeah.
Q 107: [R], you said earlier - - -
Q 108: - -- that a friend came and gave you chocolate and had to go to the office. Tell me about that friend?A: His name is Arun.
Q 109: Mm’hm.
...Q 121: You said before that Arun came over the day before your dad died.
A: Yes.
Q 122: Tell me everything that happened from the time Arun came to your house until the time that he left your house in as much detail as you can remember, and try not to leave anything out.
A: Arun - Arun came early morning. My dad died in the morning. Arun came early in the morning.
Q 123: Tell me about that.
A: He came early morning. He - he was - had the chat with my mum because my mum told me he had a chat with my mum. He also left chocolate in - where I· keep my snacks so when I opened the - where I keep my snacks, there was chocolate there and he’d also said- I don’t know what he – I don’t know - I don’t remember what he gave me or something. He gave me something, I don’t know what he gave me - yeah.
Q 124: Mm’hm.
A: And that’s all I know - yeah.
Q 125: So when did Arun came to your house? Early morning.
A: Early morning? Yes.
Q 126: What does that mean?
A: Early morning, it means not morning, early in the
Q 127: What does that mean?
A: Early morning, it means not morning, early in the morning
Q 128: And what day was that?
A: I don’t know. I think it’s Monday or Tuesday.
Q 129: Was that - which - ‘cause obviously we ‘re talking about when your dad died, so when did he come to your house?
A: Dad?
Q 130: No, sorry.. When did Arun come to your house?
A: Arun came to my house, I already told you, early morning but I don’t know which time. I wasn’t good at reading time at that time.
Q 131: O.K. So were you asleep when Arun came?
A: Not sure. Let me just remember. Yeah, yeah, I was asleep, yeah, I was asleep.
Q 132: How do you know Arun came to your house if you were asleep?
A: Mum told me.
Q 133: Tell me everything about that time when mum told you what happened.
A: I just told you. Mum told me - she woke me up at night and she told me.
Q 134: She woke you up at - - -
A: Night.
Q 135: At night?
A: Yeah. When Arun came in and he left and when he - he came in early morning, it nearly was morning, he - she woke me up and she said all about it, then she said, “You can go back to sleep,” I went back to sleep, then I saw her - when it was morning already I saw her crying. She and my aunt were crying and - yeah, that’s when I - when I went to William’s. I saw my friend reading a book, Esther - - -
Q 136: Mn.
A: - - - I went to my firend’s house, William - - -
...
Q 157: What happened next?
A: She were - I can’t tell everything what happened in the night
Q 158: Mmhm.
A: - - - because what’s - after the chat they went to sleep and that’s all I know.
A 159: Did you wake up at night-time?
A: I woke up in the early morning and slept.
Q 160: You said you woke up early morning?·
A: Yeah, because my mum was going to tell me that Arun came. Yeah, that’s all I know.
Q 161: Tell me everything that happened when mum woke you up in the early morning.
A: Everything that happened when mum woke me up in early morning?
Q 162: Mm ‘hm.
A: She told me something that Arun was coming to my house and she left - he left chocolate so then I had - O.K., O.K., then I went to sleep and - yeah, that’s all I know.
Q 163: O.K. Did you get out of bed when mum woke you up in the early morning?
A: I – I didn’t get out of bed, I was still in bed.
Q 164: Mm’hm.
A: I was just listening to mum with the lights on.
Q 165: With the lights on?
A: (NO AUDIBLE REPLY)
Q 166: Who else was in the room?
A: Just my mum and my dad was, like, sleeping.
Q 167: Did you look at your dad?
A: My dad likes - I always sleep - I was looking at mum, then - then I sleep and look at my dad. And that’s all I know.
Q 168: What was your dad doing?
A: He was sleeping.
Q 169: How do you know he was sleeping?
A: Because he was snoring. Yeah, that’s all I know.
4 R then drew a diagram or picture of the bedroom. There followed some apparent confusion about what position his mother had been in the bed. The following questions and answers then took place:
Q 255: O.K. Can you tell if it’s night-time or daytime through the blinds?A: If its daytime then light comes, night-time it’s – it’s black.
Q 256: O.K. So when you went to bed - - -
A: Mm.
Q 257: - - - was there light or was there no light?
Q 258 Mm.
Q 259 After praying - - -
Q 260 - - - you said you went to sleep.
Q 261: O.K. You said before that mum woke you up and told you that Arun had been at the house.A: Yes.
Q 262: Tell me about the curtains or the blinds then.
A: The blinds were brown and the blinds were ·open and also people can see, 1ike - yeah, the blinds were open and - - -.
Q 263: So when mum woke you up and told you that Arun had been to the house
A: When I - - -
Q 264: - - - was it daytime?
A: When Arun left - - -
Q 265: So when mum woke you up and told you that Arun left - - -
A: Yes.
Q 266: - - - was it daytime?
A: No, because they were early morning.
Q 267: Sorry?
A: They were early morning.
Q 268: How did you know it was early morning?
A: ‘Cause - ‘cause mum told me it was – I said, “Is it - is it morning yet?” And mum told me it’s early morning and Arun came to my house.
Q 269: Mm’hm.
A: And put chocolate.
Q 270 So before we said that there was – it was dark outside when you went to sleep - - -
A: Mm.
Q 271: - - - after praying.
A: Mm.
Q 272: What was it like when you woke up that time?
Q 273: So when you were praying you said it was dark outside.
Q 274 What was it like outside when mum woke you up and told you Arun left?A; It was, like, .the sun was setting, it was orange - orange-ish. How many minutes? I go - I can’t remember.
Q 275 You said it was orange?
Q 276: And when you woke up and your auntie was there - - -A: Yeah, and my mum.
Q 277: - - - and your mum, what was it like outside?
A: It was just - it was morning and the sun was already set.
Q 278: Earlier you said that when mum woke you up - - -
A: Yes.
Q 279: - - - and it was early morning.
A: Yes.
Q 280: You said you knew dad was asleep because he was snoring.
A: Yeah.
Q 281:Tell me about how he was snoring.
A: (Demonstrates verbally) he snores and he’s - and then I tell him that he snores and he says, “No, I didn’t. No, I didn’t”
Q 282: So when you woke - when you - when your mum woke you up - - -
A: Yes.
Q 283: - - -and it was still early morning - - -
A: Yeah.
Q 284: - - - was your dad snoring?
A: Not – I’m not sure. I’m not sure.
5 It was said that that evidence could be used to prove that Sam was awake during the night and had said that Kamalasanan had been at the house on the night of the murder. That evidence, it was said, amounted to an admission by Sam that Kamalasanan had been at the house.
6 That was not the end of the matter. Prior to the trial, the informant, Detective Leading Senior Constable Strachan, was told that R wanted to change something he had said in the interview. The Court was provided with a copy of Detective Leading Senior Constable Strachan’s statement on 6 November 2017, in which was set out an interview he had conducted with R that day:
I said, “Ok, so I just want to have a bit of a chat in regards to a matter that you spoke to someone about last week.”He said, “Yeah.”
I said, “My name is Joe, this is Mick and this is Adam. Now I’m aware that you came here last week. I think that it was last Thursday. Is that right?”
He said, “Yeah.”
I said, “And you spoke to some people here about an interview?”
He said, “Yeah.”
I said, “Like a video recording?”
He said, “Yeah.”
I said, “Ok. Now is it true, is there something that you wanted to say about that recording?”
He said, “Yeah.”
I said, “What was that?”
He said, “Remember when I said Arun came? He did come but it wasn't on the day before.”
I said, “Ok, when did he come?”
He said, “He came, urn, like a week after.”
I said, “Ok, when did you realise that you didn't tell the truth about that?”
He said, “After two months, then I thought for a bit, then I said, “I didn’t tell the truth so I have to tell them the truth when I came here.”“
I said, “Ok. So you said two months after you spoke the first time? And you were at Epping at the time, do you remember that? You were at a police station?”
He said, “Yeah.”
I said, “So it was two months after that?”
He said, “Yep.”
I said, “And so,. when you came here you thought you should tell the truth?”
He said, “Yep.”
I said, “Ok. When was the first time that you told someone that you didn’t tell the truth about Arun?”
He said, “I don’t know.”
I said, “So when you came here last week...”
He said, “Yeah.”
I said, “You told, was it a lady or a man that you spoke to when you watched the video? Before you watched the video?”
He said, “A lady.”
I said, “And when did you tell that lady that you didn’t tell the truth about Arun?”
He said, “Once we came here.”
I said, “When she came here. Did you watch the video of yourself last week when you came here?”
He said, “Yeah.”
I said, “And, did you tell the lady the truth before or after you watched the video, or during?”
He said, “Before.”
I said, “Is that the first time that you told anyone the truth about seeing Arun on a different day?”
He said, “Yeah.”
I said, “That was the first time?”
He said, “Yeah.”
I said, “Did you tell anyone else?”
He said, “No.”[2]
7 The trial commenced on 8 November 2017 for the hearing of preliminary argument. I was told that R had been given independent advice and no application was to be made pursuant to s 18 of the Evidence Act 2008 (the ‘Evidence Act’).
8 The prosecution foreshadowed an application pursuant to s 38 of the Evidence Act to cross-examine R because his evidence was unfavourable and that he had made a prior inconsistent statement.
9 Mr Hannebery, who with Ms Burnnard appeared for Sam, foreshadowed a challenge to the admissibility of the recorded interview on the basis that it was a condition precedent to its admissibility that:
368 Admissibility of recorded evidence-in-chief(1) Subject to subsection (3), a recording referred to in section 367 is admissible as evidence in a summary hearing, special hearing or trial in the proceeding as if its contents were the direct testimony of the witness if—
...
(c) at the summary hearing, special hearing or trial, the witness—
(i) identifies himself or herself and attests to the truthfulness of the contents of the recording; and
(ii) is available for cross-examination and re-examination.[3]
10 The difficulty about that submission was that it was not known what precise parts of the interview were said to not be truthful apart from the part about ‘Arun’. The interview with Detective Leading Senior Constable Strachan was brief. It followed that it would be necessary for a further interview be conducted to establish what were the circumstances in which R decided that he was wrong about his evidence and to establish which portions of his evidence he would acknowledge as truthful. Such further interview had the potential to show how the s 38 application might proceed. That course was either suggested or agreed to by the relevant parties.
11 A further interview was conducted and recorded on the afternoon of 8 November 2017 and that interview was played in court on 14 November 2017. Again, Detective Senior Constable Tsivoglou asked the questions. The procedure adopted was to play R the first interview and ask him to make any corrections about anything which was not true or a lie in the first interview.
12 R first sought to make a correction at about Q 105 of the first interview. He said:
A: Can I change that? He did come.Q 71: Mm’hm.
A: But it wasn’t the day before my dad died.
Q 72: So one second, so four - sorry, you said you want to change that?
A: Yeah.
Q: 73 What do you want to change?
A: About - ‘cause I said that he came before my dad died, but he actually came, like, two months later.
Q 74: O.K.
A: Gave me the chocolate.
Q 75: Tell me about that.
A: I don’t know what to say.
Q 76: [R], when we were listening to the recording, well; I heard the night before your dad died you were at home and you’d played with some toys and you watch some TV and after that you were making something with cardboard and it was a car with cardboard and paper and mum helped you out.
Q 77 Was that true?
Q 78: Then you said that your friend came and talked with you. Is that true?
Q 79: You said that that friend had to go to an office so only got to talk with you and he also brought you some chocolate.
13 And later when Q 122 to 124 of the first interview were played, he said:
Q 101: What did that – what was talked about just then?A: If – when did Aru come
Q102: Mm’hm.
A: And - - -
Q 103: And what did you say?
A: I said he came early morning.
Q104: Mm’hm.
A: And that .......... it’s before my dad died.
Q105: Mm’hm.
A: And he gave me chocolate.
Q106: Mm’hm. Is that the truth?
A: Yeah.
Q107: [R], did Arun come to your house in the early morning before your dad died?
No. He came two months later.
And then when Q 125 to 135 of the first interview were played, he said:
Q 109: [R], did you hear everything?A: Yeah.
Q 110: Can you tell me what was just discussed?
A: Arun came early morning and then in the morning my mum and my auntie was crying.
Q 111: Mm’hm.
A: And then I went outside to meet my friend, called Ester.
Q 112: Mm’hm. So why was your mum and your auntie crying?
A: ‘Cause my dad died.
Q 113: So is what you just said then the truth?
A: Yeah.
Q 114: So I - what I understood for you to say then was Arun was at your house during the night, in the early morning.
A: Yeah.
Q 115: And your mum’s told you that.
A: Yeah.
Q 116: And then in the morning you woke up and your dad had died.
A: Yeah.
Q 117: Is that the truth?
14 That passage is plainly ambiguous. Then, when Q136 to 162 were played he said:
Q 118 [R], are you listening to everything that’s being said on the computer still?
Q 119: What were we just talking about?A: We were talking when - what happened in the morning, in the early morning when my - the - start from the early morning and the - what happens in the night.
Q 120: What night was that?
A: The day before my dad died.
Q 121: Was everything that you said the truth?
A: Yes.
Q 122: You said that your mum told you that Arun was coming to your house and he left some chocolate.
A: Yeah.
Q 123: And then you went to sleep. Was that true?
A: That was true, but that wasn’t on the day before.
Q 124: When was that?
A: That was when -that was, like, two week’s later or- - -
And then when Q 163 to 169 were played, he said:
Q 126: Did you hear anything then?A: Yeah.
Q 127: What can you tell me about that?
A: You said that if my dad was – if – how do you know if my dad is sleeping, and I said, “’Cause he’s snoring.”
Q 128: Mm’hm. Is everything from the last time we stopped until now the truth?
A: Yes
15 R confirmed the accuracy of the picture he had drawn in the first interview and his correction of it and when the balance of the interview was played, he made no further corrections.
16 It should be noted that Q 255 to 284 in the first interview do seem to confirm what R had said earlier in that interview about what he had been told by his mother about Arun’s presence.
17 It is of some significance to set out the later part of the second interview:
Q 145 O.K. That’s the end of our interview, our talk last year -A: Mm’hm.
Q 146: - - - in August 2016. Were you able to hear everything clearly?
A: Yes
Q 147: Did you understand everything that we spoke about?
A: Yeah.
Q 148: We spoke earlier about some things that you wanted to change that you said weren’t true.
A: Yeah.
Q 149 Can you tell me what those things were again, please?
Q 150: Mm’hm.A: But he actually came two months later.
Q 151: Mm’hm.
A: .....and he did come early morning and did give me the chocolate, but it was on the other - on, like, two months later.
Q 152: So last August when you - when we first spoke about this - - -
A: Yeah.
Q 153: - - - you told me that Arun was there on the morning - in the early morning - - -
A: Yeah.
Q 154: - - - before your dad died.
A: Yeah.
Q 155 Is that true?
Q 156: You remembered?A: Yeah.
Q 157: Tell me about that.
A: Mm -
Q 158: You said you remembered.
A: Yeah, I remembered when I came back home and then I told my auntie and my auntie said, “Just go to sleep and tomorrow just tell” - ‘cause I didn’t get to tell my auntie ‘cause my auntie was already sleeping.
Q 159: Uh’huh.
A: So I just - she just said, “Go to sleep”, so I went to sleep.
Q 160 Mm’hm. I don’t understand what you’re saying. You - you said you remembered when you got home after this interview that we had?
Q 161: What made you remember?A: Well, I went home, I thought for a bit, then my - I told my. auntie, my - my auntie said to me, No, he didn’t come on that day.
Q 162: Which auntie told you that?
A: The auntie that - waiting over there.
Q 163: What’s her name?
A: Soniya.
Q 164: How would your auntie know if that happened or not?
A: ‘Cause that when Arun came he came two months later.
Q 165: Mm’hm.
A: Wait, my auntie didn’t tell me, actually my - I think it was - it was someone in my family, but I forgot who it was.
Q 166: When did they tell you?
A: When I asked them.
Q 167: What do you think?
A: Like, what do I think?
Q 168: Yeah.
A: I dunno, I’m not sure .......... properly, I’m not sure.
Q 169: Excuse me a moment, please, [R].
Q 174: [R], we spoke earlier about telling the truth and telling lies. Is what we have spoken about today what really happened?
A: Yes.
Q175: Are you sure about that?
A: There’s something we need to change, ‘cause I changed it.
Q 176: Sorry.
A: I changed something in the video.
Q 177: Yeah. But what we’ve spoken about today and the things that you ‘ve told me today, did that really happen?
A: Actually, sorry, ‘cause when I got nervous I accidentally lied.
18 One difficulty, which I then identified, was that what was said by R in the first interview relevant to the trial was in fact what he said his mother had told him. That evidence would be used to establish that Sam knew that Kamalasanan had been to the house on the night or morning of the killing. There was no doubt that R had resiled from that proposition and purported to give an explanation for the change in his evidence.
19 It followed that even if R were to be cross-examined under s 38 of the Evidence Act, two separate issues arise. First, what R had said his mother had told him was hearsay, but if adopted by him would have been admissible as an admission pursuant to s 81 of the Evidence Act. When he failed to adopt his interview, the assertion of what his mother said became second-hand hearsay and would fall foul of s 82(a) of the Evidence Act.
20 Second, even if the evidence were to be adduced under s 38 of the Evidence Act, the prior inconsistent statement only raises the question of credibility.[4] In this case the only question of credibility which really arose was the truth or non-truth of the matters contained in the first interview but could only be of any real significance to the prosecution case if the first interview could be admitted as truth of its contents. As I have already observed, that could not be done.
21 The prosecution conceded that my analysis of ss 81 and 82 of the Evidence Act was correct. I then indicated that I regarded the probative value of a s 38 exercise as low, which appeared to be accepted by the prosecution who did not press the matter further.
22 I then formally excluded the evidence pursuant to s 137 of the Evidence Act on the basis that its probative value was outweighed by the danger of unfair prejudice.
23 I might add that it would have been a very difficult task to ‘edit’ the two interviews and such relevant material which remained was not in issue.
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[1] Criminal Procedure Act 2009 s 367; Criminal Procedure Regulations 2009 reg 5.
[2] Notice of Additional Evidence, Joseph Paul Strachan, dated 8 November 2017.
[3] Criminal Procedure Act 2009 s 368(1)(c)(i) and (ii).
[4] Vickers v The Queen [2006] NSWCCA 60; (2006) 160 A Crim R 195, 207; Lee v The Queen [1998] HCA 60; (1998) 195 CLR 594.
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