Assafiri v Horne [2004] WASCA 40

Assafiri v Horne [2004] WASCA 40 - WASCA 2004 case summary — Zoe

[50]

"The overall factual circumstances are fairly straightforward. It's said that there was a restraining order against Mr Assafiri in favour of a Heather Ann Weir, and it's said that on the 9th of February Mr Assafiri breached that order by going to Miss Weir's home, and in the process of - - or during the period there, he struck Miss Weir on the back of the head, one punch to the back of head, constituting the assault.

From the defendant's point of view - - and the state of the evidence is - - depends on one view of things, but Mr Assafiri gave - - has pleaded not guilty to the matter, of course, but gave an explanation that he in fact had never been to - - or hadn't gone to Miss Weir's premises on that day and hadn't - - hadn't assaulted her. So in a sense the video didn't take the matter terribly much further than a not guilty plea. ...

I turn to the evidence of Heather Ann Weir. She of course was the complainant - the victim, if you like. I didn't have any concerns, I must say, at the end of the day with Miss Weir's evidence. There were some curious aspects to her evidence. She liked to denigrate gratuitously Mr Assafiri, volunteered often quite damaging and unsolicited material against Mr Assafiri. I concluded that was more a sign of her dislike for Mr Assafiri that had obviously developed over time, without necessarily reflecting on her integrity or honesty.

There were some curious aspects, obviously somewhat amusing; her indication that she didn't drink beer, because she drank champagne. But there was - - as amusing as it might have been, it didn't reflect on her credibility. Nothing to suggest that that wasn't the case, and nothing really that emerged for me in the question - - in the cross-examination or her evidence in-chief that suggested that she was a other than honest witness. She was examined as to her credibility, whether she'd been in a relationship with this fellow Assafiri etcetera. All of the matters she answered, as I say, without giving me any cause for concern that she was being dishonest. There is, it seems to me, nothing that I can point to that would indicate that she was other than telling me the truth about what had happened.

The final witness was Darren William Horne, the officer who's made the complaint in this matter. He of course conducted a video record of interview. I'm of the view that that record of interview should be regarded as being inadmissible. The situation in that regard was that Mr Assafiri was cautioned. There was some difficulty with the caution obviously, because although Mr Assafiri indicated that he could understand it, when he was really asked to repeat in his own words or explain in his own words, he struggled with that.

But then what was absolutely crystal clear was that he made it known on a number of occasions that he didn't want to answer any questions, and said that repeatedly, and yet the interview proceeded. I don't, with respect, think Bunning and Cross has anything to do with the matter, and it is really a situation, in my view, that there is no point in administering a caution which tells people that they don't have to participate in the record of interview, and don't have to answer any questions, and when they then indicate they don't want to participate - - and you just ignore it and continue on.

It - - in my view, appropriate notice has to be taken of the - - of the caution and Mr Assafiri indicated he didn't want to answer any questions. That's exactly what should have happened. He should have - - in my view the interview should have ceased.

The point about Palmer's case; I absolutely accept that it was a different charge and different context, but the point about that case of course is that when you say to somebody, 'Why would someone lie about this,' you run the danger of reversing the onus of proof. It's not up in this case to Mr Assafiri to have to nominate why it might be that Miss Weir would make up things. That's not his job at all and, as I say, one runs the danger of reversing the onus of proof.

It's up to the prosecution to prove matters, not up to the defendants to explain why people might lie against them, and that's really the cornerstone of the dicta in Palmer's case. That's why I expressed the view, which I adhere to, that the officer shouldn't have asked why Miss Weir would say these matters. That's really a question for Miss Weir, and simply all that needed to happen was the propositions that Miss Weir was saying just simply needed to be put to Mr Assafiri.

Now I take the view that the video was inadmissible. Now I know to some extent that leaves the situation that Mr Assafiri then hasn't explained to some extent his version of things, because it would leave the court without evidence in that regard. But as I indicated earlier, the situation is anyway that Mr Assafiri has pleaded not guilty to the matter, and it was always up to the prosecution to prove the matter, and Mr Assafiri's explanations, as much as they could ordinarily be taken into account, really don't take the matter much further than in my view the not guilty plea.

If I'm wrong about the admissibility of the evidence of the video of interview, I simply make these observations; that Mr Assafiri said that he didn't go to the house and didn't assault Miss Weir, and that if anything, it was the case that she'd come to his place, and he was complaining about some incident where some bottle was involved, and some smashing and things like that. I simply, without trying to labour it too much, make the point that whatever his explanation was, it's not up to Mr Assafiri to do other than give an explanation if he wants to. If these matters are to be proved, it's up to the prosecution to prove them. ...

As far as the assault matter is concerned, the - - looking at the - - at the matter, it seemed to me that - - as I've indicated, that Miss Weir was a credible witness. Now I've approached it on the basis that her evidence is to be critiqued only if I am satisfied that she is an honest and accurate witness - can I accept it - and of course Mr Assafiri has challenged that; if one takes into account what he said in the video, challenged it by saying of course that he had never - - hadn't gone to her place and hadn't assaulted her.

So her credibility was very much on the line, but there was nothing, as I indicated earlier, that made me doubt what she said. And I find in that regard that she was at home, as she indicated; on this day, that Mr Assafiri turned up uninvited and came into her house, that there was a situation where it was obvious that she wanted him to leave, or it became fairly obvious. I accept that she went to make a phone call and that Mr Assafiri punched her in the back of the head and left.

Although of course it followed that not having eyes in the back of her head, that the - - her evidence about it being with a closed fist and the right hand one could argue with, but she explained that by saying she felt the blow and concluded it was a fist, and she knew that Mr Assafiri was right-handed. So that was how she came to that view. Nothing turns on it, because there's no question about the application of force described in that way. Whether it was with a closed fist or an open hand, it constituted an assault."

[88]

Phipson on Evidence (13th ed, 1982), par 16-16 tabulates the exceptions to the hearsay rule. The list includes admissions and confessions of parties. It does not, of course, contain self-serving statements of innocence. It is said (at par 19-02) that in criminal cases statements made out of court by an accused are admissible against him and, in relation to confessions the word 'against' is italicised. The most generally accepted ground of reception is stated to be 'that a party's declarations, whether for or against his interest when made, may always be taken to be true as against himself': at par 19-04. The proposition that a purely self-serving statement is receivable as evidence of the truth of its contents by way of an exception to the hearsay rule is, in my opinion, contrary to principle. We are, of course, not concerned here with the admissibility of such a statement for a purpose other than the proof of the fact stated, such as the rebuttal of an allegation of recent invention or afterthought. Nor is the principle weakened by the rule that a confessional statement, once tendered by the Crown, is evidence not only against but for the prisoner, in so far as any part of its contents may support his own case. The accused is entitled to have the whole statement put in, including any explanations given by him, which he may elicit by cross-examination: McGregor [1968] 1 QB 371; 51 Cr App R 338; Higgins v Dorries [1965] Qd R 389 although the tribunal in fact is not obliged to give them the same weight as the confessional matter. However none of this touches the present case. In my view it cannot be doubted that the accused is not entitled to tender his own prior self-serving statements. So much was decided by the Court of Appeal in Newsome (1980) 71 Cr App R 325 at 330 and Steel [1981] 1 WLR 690; 73 Cr App R 173.

In Lopes v Taylor (1970) 44 ALJR 412 at 421, Gibbs J, as he then was, after referring to the view expressed in some Australian cases that self- serving statements made in the course of an admission are admitted only as explanatory of or as qualifying the admission went on to state his own view in the following language:

[99]

"26 Some parts of the total interview could be taken to be against the appellant's interest, so that the whole interview could be regarded as a mixed statement in the sense frequently used in this context. The prevailing overall flavour of the interview was, however, distinctly self-serving. The law is well settled, however, that by virtue of those parts of the interview which may be accepted as against the appellant's interest, or 'confessional in character', the statement, that is, the whole record of the interview might have been led in evidence by the prosecution: Middleton (1998) 19 WAR 179 at 182 and 189; 100 A Crim R 244 at 247 and 255-256. But if the prosecution determines against introducing the record of interview it could not have been led in evidence or be the subject of questions in cross-examination by the defence: Callaghan [1994] 2 Qd R 300 at 303-304; (1993) 70 A Crim R 350 at 352-354. This position has been well settled for approaching two centuries: Higgins [1828] EngR 201; (1829) 3 C & P 603 at 604; [1828] EngR 201; 172 ER 565 at 565.

27 The submission of the appellant is that the present case should be regarded as different by virtue of the evidence led, in virtually so many words, by the prosecution that the appellant had denied the allegations. This appears to me to be without substance as a point of distinction. Strictly it may be the position that evidence of the denials ought not to have been led, but it was clearly in the appellant's interest for the jury to know that the appellant had denied the allegations and no objection was made to this. This does not constitute in any real sense an attempt by the prosecution to lead evidence of parts of an out of court statement which suited the prosecution, without adducing the whole of the statement including those parts which favoured the appellant. This was in truth the opposite of that situation. No doubt out of a sense of fairness to the appellant the prosecution led evidence that when interviewed the accused had denied the allegations. The trial judge was not prepared to allow that to provide a springboard for a roaming cross-examination as to what was said during the interview, or to a viewing of those aspects of the video record of interview which favoured the appellant and were, on many view, self-serving of his interests. I am not persuaded that this ruling of his Honour was in error as a matter of law or involved any unfairness to the appellant. If there has been any defect in this respect it was one which favoured the appellant by allowing the fact of his denial of the allegations against him to be led as part of the prosecution case." (Emphasis added).

[132]

"There is an absence of clear authority in criminal cases as to the evidentiary value of hearsay evidence admitted without objection. In our view, however, it would be appropriate to apply the principle espoused in the cases in the civil jurisdiction to which we have referred. In the present case deliberate choices were made by the prosecutor to adduce hearsay evidence, then to refrain from objecting to other such evidence and thereafter to address the jury on the assumption that they could, were they minded to do so (but he urged they not be so inclined), accept the truth of that which was asserted. In those circumstances the jury would be entitled to act upon the hearsay evidence as truth of the facts contained within it. In other words, it is too narrow a proposition, as asserted by counsel for the Crown on this appeal, to state that, once hearsay, evidence is always hearsay, and thereby incapable of establishing as fact matters contained within its compass.

This is not to say, of course, that the jury was bound to give equal weight to the assertions contained in the hearsay evidence as they would have given to viva voce evidence or other non-hearsay evidence. An analogy may be drawn with the situation of a statement of an accused person admitted upon the application of the Crown as an exception to the rule against hearsay because the statement contained admissions against interest made by the accused. In those circumstances the jury is entitled to have regard to, and to treat as evidence of the facts, not only the confessional parts of the statement upon which the Crown relies but also those parts of the statement which would otherwise have been inadmissible because they amount to being self-serving statements made, out of court, by the accused. (See generally, Cross on Evidence (Aust ed), par 33455.) Thus, in the present case the jury would appropriately need to have been directed that the weight they attached to the assertions contained in the out-of-court statements of Parker was a matter for them to decide and that they were not bound to either rely on those statements as proof of the facts or to give the statements the weight which they might give to other evidence before them."

[144]

"There remains the question of what ought to be done, or said to the jury, about this part of Mrs. Smith's evidence. The fact is that the evidence went in without objection and the jury has heard it. Mr. Duggan, for the accused, has submitted this morning that, even if the evidence was wrongly admitted (and he argued to the contrary about that), it would not be right to strike the evidence from the record. It ought to be left for the jury to assess as they think fit.

It is not uncommon for evidence to be received conditionally, its ultimate place in the proceedings depending upon the introduction of supplementary evidence that will bestow upon it the requisite degree of relevance to the matter before the Court. Where it transpires that the expected condition is not fulfilled, the conditional evidence is simply ignored. Often the subject of such evidence is of relatively minor importance and its de facto exclusion is just taken for granted at the close of the trial. The evidence under consideration in the present case is unusual because of its subject matter and because the party who introduced it evidently had no intention from the start of fulfilling the necessary condition of its ultimate admission. As a matter of principle evidence, apparently important, that turns out to have been erroneously introduced into a jury trial should, as a general rule, be expressly withdrawn from the jury's consideration. The judge will in such a case tell the jury to disregard the wrongly admitted evidence; he may even, in order to avoid any possible misunderstanding, have it struck out of the transcript. Cf. R. v. Christie [1914] AC 545, at p. 555 and The Queen v. Ireland (No. 1) [1970] SASR 416, at p. 423. However, there may be exceptional cases in which it would be unjust to follow that strict course. For instance, the opposing party may, not unreasonably, have shaped his case according to the evidence that was wrongly introduced. I do not think that could be said of the defence here, and I warned the parties a week or two ago that I might well find this evidence to be inadmissible. Nevertheless I feel some difficulty about actually withdrawing the evidence from the jury's consideration where the party that wants to use it was not the party that wrongly introduced it." (My emphasis).

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Judgment (164 paragraphs)

Assafiri v Horne [2004] WASCA 40 (12 March 2004)

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Cases Cited (19)