DPP v Bourbaud [2011] VSC 103

2 In essence, the Crown case against the accused is that he stabbed the deceased with a knife which he obtained from inside the nearby premises whilst the deceased was being assaulted, not only by the accused but by the accused's father Max Bourbaud, his mother Francie Bourbaud and another man named Scott Smith. It is not suggested that the stabbing of Mr Tiotala by the accused is something that was within the contemplation of those other three people at the time, and they are not said to have responsibility for the homicide that occurred.

3 Indeed, Mr and Mrs Bourbaud as well as Smith were themselves charged with the offence of assault in relation to these matters, pleaded guilty and were sentenced by Coghlan J in this Court on 3 September 2010 to each pay a fine of $1,500. I will return to the detail of this but in November 2010 each of these three people made statements which, for reasons that will become apparent, appear to be at odds with with their pleas of guilty. At a trial before T. Forrest J in December of 2010 each gave evidence as a prosecution witness on a preliminary Basha hearing[1] and then before the jury, before the jury were discharged by his Honour for reasons irrelevant to this ruling. I am the trial judge for the re-trial.

4 Pursuant to section 18 of the Evidence Act 2008 (Vic), Mr and Mrs Bourbaud, as the parents of the accused, were entitled to object to being required to give evidence on his trial but neither of them have made, or now make, such an objection.

Application for leave to cross examine Crown witnesses

5 Pursuant to sections 38 and 192A of the Evidence Act, on behalf of the Crown, Mr Rose SC has applied for an advance ruling granting the prosecution leave to cross examine each of the three witnesses: Max William Bourbaud, Francie Bourbaud and Scott Smith. The application is opposed by Mr Stuart of counsel on behalf of the accused.

6 Section 38 of the Evidence Act provides as follows:

Unfavourable witnesses

(1) A party who called a witness may, with the leave of the court, question the witness, as though the party were cross-examining the witness, about-

(a) evidence given by the witness that is unfavourable to the party; or

(b) a matter of which the witness may reasonably be supposed to have knowledge and about which it appears to the court the witness is not, in examination in chief, making a genuine attempt to give evidence; or

(c) whether the witness has, at any time, made a prior inconsistent statement.

(2) Questioning a witness under this section is taken to be cross-examination for the purposes of this Act (other than section 39).

(3) The party questioning the witness under this section may, with the leave of the court, question the witness about matters relevant only to the witness's credibility.

(4) Questioning under this section is to take place before the other parties cross-examine the witness, unless the court otherwise directs.

(5) If the court so directs, the order in which the parties question the witness is to be as the court directs.

(6) Without limiting the matters that the court may take into account in determining whether to give leave or a direction under this section, it is to take into account-

(a) whether the party gave notice at the earliest opportunity of the party's intention to seek leave; and

(b) the matters on which, and the extent to which, the witness has been, or is likely to be, questioned by another party.

(7) A party is subject to the same liability to be cross-examined under this section as any other witness if-

(a) a proceeding is being conducted in the name of the party by or on behalf of an insurer or other person; and

(b) the party is a witness in the proceeding.

7 Leave sought by the Crown must be on one of the bases identified in s 38 and the primary basis here is that each of these three witnesses is unfavourable and has made a prior inconsistent statement pursuant to section 38(1)(a) and (c).

8 The Evidence Act defines a "prior inconsistent statement" of a witness as a previous representation that is inconsistent with evidence given by that witness.[2] In this case, the prosecution has sought leave to cross examine these three Crown witnesses about their pleas and the extent to which they can be taken to have adopted the summary of facts on which they were sentenced, rather than on the basis of some prior inconsistent first-hand narrative of their own. Both the prosecution and defence agreed that to the extent that the three witnesses accepted the factual basis on which they were sentenced, as put by the Crown at their plea, any evidence that they give in the trial of the accused about them acting in self-defence will amount to a prior inconsistent statement.

The case against the three witnesses and the accused

9 The Crown case, as it was at the plea of the three witnesses, and as it is proposed to be opened in the re-trial of the accused, is that the deceased man resided at Unit 6, 1 Mullett Street Hastings with his partner Kellie Potter and their children. The accused resided in the same unit complex at Unit 1 and shared his premises with a friend, Christopher Mitchell.

10 On Wednesday 8 July 2009, the accused and the deceased had had contact with each other, and during the evening arguments had occurred between them. At about 9.45pm, the parents of the accused and Smith arrived at the accused's unit. The deceased was present, as were a number of others who are to be witnesses in the accused's trial. There were further arguments between the deceased and the accused, but the deceased left the premises of the accused after being told to do so by the parents of the accused.

11 After the deceased had left the unit of the accused, there was then discussion between the accused man and his parents about what should be done, and the accused is said to have wanted to fight the deceased and "punch his head in". The parents of the accused were said to be encouraging that course of action, urging him to do it rather than just talk about it.

12 With the deceased having returned to his unit, there were expressions by the accused about his intention to assault the deceased and finally, at about 1.30am, the deceased went downstairs to the unit occupied by the accused and when he knocked on the door the door was answered by the mother of the accused. A fight then started which involved the accused and the deceased, with the father of the accused and the witness Smith becoming involved.

13 The Crown case is that Kerrie Potter who was the girlfriend of the deceased had attempted to get into the unit to prevent what was occurring and at about 1.32pm, she made a phone call to 000 for police assistance.

14 The Crown case is that the fight then moved outside and, once outside, the deceased, the accused, Smith, the father of the accused, the mother of the accused, Potter and the witness Mitchell were present. Both of the parents of the accused were said to have become involved and, at this point, the deceased had tried to move away from the three persons who were assaulting him and had held up his hands to indicate that he no longer wanted the fight to continue. However, it is put that the assault on him continued. At about this stage, the accused man is alleged to have removed himself from the fight and gone back into his unit and obtained a 20cm long carving knife. Meanwhile, the witness Smith and the father of the accused were said to have been repeatedly punching the deceased, and the father of the accused had also struck him several times with a frypan causing the handle to break.

15 When the accused returned, he then stabbed the deceased once in the back with such force that the entire 20cm blade went into the body of the deceased and the handle broke.

16 Following this incident, the parents of the accused and Scott Smith continued their assault on the deceased.

17 Ultimately police and an ambulance arrived and, after being transported to the Alfred Hospital, the deceased died at 5.30am.

18 As Mr Rose has submitted, the relevant part of the narrative is that on the Crown case Max William Bourbaud and Scott Smith had pushed the deceased up against a fence outside whilst Francie Bourbaud was holding his legs, with the deceased trying to get away but being unable to. It was then the accused is alleged to have detached himself from the incident to obtain the knife.

19 The importance of that evidence is that it goes to the issue expected to be raised by the accused of self-defence, or the defence of another.

20 On 3 September 2010, Max Bourbaud, Francie Bourbaud and Scott Matthew Smith pleaded guilty to one count of common assault. In the course of the pleas on behalf of each of them concessions were made. Mr Traczyck on behalf of Smith accepted[3] that the "...barrier (of self-defence) is exceeded and the offence of common assault is committed". Mr Zebrowski on behalf of Mrs Bourbaud submitted that his client should be sentenced on the basis that she became involved at a point where she thought her son was not doing well in the conflict but her involvement occurs at a time when "...the matter is no longer a matter of self-defence...hence the plea...".[4] On behalf of Mr Max Bourbaud, Mr Mandy of counsel put to the Court that "...there came a point in time when self-defence was no longer reasonable and the fight continued thereafter".[5]

21 Each of them was sentenced on the basis of an agreed statement of facts, most of which was cited by Coghlan J in imposing the sentence of a fine of $1,500 in each case.

22 Included in his Honour's reasons for sentence were his Honour's references to verbal aggression by Francie Bourbaud toward the deceased, encouragement by both of the parents of the accused for him to act out his expressions of his desire to fight the deceased, and some support from Smith in assisting the accused in yelling out to Tiotala's unit later in the evening for him to come out and fight.

23 His Honour also imposed sentence on the basis that the fight commenced inside the unit and then moved outside, and that the fight involved each of the three persons now proposed to be called as Crown witnesses. Once the fight moved outside, according to Coghlan J, Mrs Bourbaud became involved and the deceased was backed up against a fence and held in that position by Max Bourbaud and Smith, whilst Mrs Bourbaud took hold of his legs. As I have earlier noted, prior to that happening, according to the basis on which Coghlan J sentenced each of these three witnesses, the deceased was holding up his hands making it clear that he did not wish to fight.

24 As I have earlier noted, on 27 November 2010, having been sentenced in September 2010, Max Bourbaud and Francie Bourbaud made police statements. At the commencement of the trial which began before T Forrest J, they and Scott Smith gave evidence on the Basha enquiry and all gave evidence before the jury prior to the jury being discharged.

25 The effect of the evidence given by each of the three witnesses on the Basha enquiry was consistent with their statements and their trial evidence which I will shortly summarise. As to their reasons for pleading guilty to the charge of assault before Coghlan J, Mrs Bourbaud said that having spent $40,000 on legal fees they could not afford to keep fighting the case and that she was advised that yelling and screaming trying to stop her son being assaulted might amount to common assault.[6] Smith said he was advised to do it because he wanted to get his case over with.[7] As far as I can tell, Mr Bourbaud was not questioned about it.

26 The effect of their trial evidence was as follows. In the case of Max Bourbaud he said that during the fight which was proceeding outside the unit he, among other things, struck the deceased with a frying pan but he could not be stopped from fighting with the accused.[8] He said that just before the deceased had fallen to the ground he was swinging at him.[9] He did not accept that either he or Scott Smith had got the deceased in a headlock nor did he accept that his wife had the deceased by the legs.[10]

27 Mrs Bourbaud in her evidence appeared to deny that she did anything aggressive toward the deceased at all and rather than she had been "jumped" by the deceased.[11] She said that at no time did she grab the deceased.

28 Mr Smith said that his involvement was only to try and stop the fight between the accused and the deceased and he only struck the deceased because he had been struck by him.[12]

29 On any view, such evidence is unfavourable to the prosecution. As has been noted on many occasions, s 38 does not require that the evidence or the witnesses themselves be adverse or hostile or uncooperative with the prosecution. The section requires only that one of the three conditions be met. As Curtain J said in DPP v McRae[13] at paragraph 24:

The word "unfavourable" does not mean adverse or hostile. It is taken to mean "not favourable" as was held by Smart J in R v Souleyman ("Souleyman's case") and subsequently followed by the courts in New South Wales. Although the Federal Court in Hodgkiss v Construction, Forestry Mining and Energy Union ('Hodgkiss's case') characterised "unfavourable" as having "to detract from the case of the party calling the witness", it appears from my reading of the authorities that the approach of Souleyman's case is generally preferred and I would apply that definition. Nonetheless, even on the more restricted approach as stipulated in Hodgkiss's case, Flaherty and Connally would meet the requirements of unfavourable.

30 Mr Rose, on behalf of the Director of Public Prosecutions, submits that I should therefore grant leave pursuant to s 38(1)(a) and (c) of the Evidence Act to permit the prosecutor to cross-examine each of these three witnesses, primarily upon the basis on which they pleaded guilty when they were presented before this Court for sentence in September 2010. In support of that conclusion, Mr Rose submits that such matters do not go only to credit and he opposes any limitation that I might place on the use of the evidence pursuant to section 136 of the Act. He argued that it would be distortion for the jury not to be aware that these three witnesses who will give evidence which is unfavourable to the prosecution pleaded guilty to the offence of assault on a basis inconsistent with that evidence.

31 Mr Stuart, in his submissions, accepted that each of these three witnesses was unfavourable within the meaning of section 38(1)(a) of the Act and that by their pleas of guilty they had made a prior inconsistent statement within the meaning of section 38(1)(c). He submitted, however, that the issue of the pleas of guilty made by each of these witnesses can only go their credit as witnesses and referred in that context to the judgment of the Full Court of this Court in R v Gallagher [1986] VicRp 25; [1986] VR 219. Given that limitation, Mr Stuart submitted that I should not accede to the prosecutor's application given the consequential prejudice that will occur. The relevant issue in Gallagher was whether the fact that certain prosecution witnesses who had pleaded guilty to offences which were connected to the case against Gallagher should have been opened to the jury and been the subject of evidence led by the Crown. The Court at first observed:[14]

Because there may be a new trial, we desire to repeat our opinion that the evidence of the developers being charged, brought before the Court, pleading guilty and being dealt with was irrelevant to any issue in the trial. Accordingly, none of the evidence should have been opened. In opening, Mr. Morrissey told the jury that the evidence of the pleas of guilty could not be used against the applicant. That was a correct statement of the law and demonstrates that the evidence should not have been opened.

"...we repeat our opinion that, in this case, the Crown was not entitled to open or lead evidence of any developer having been charged, brought before a Court, pleaded guilty or convicted until the issue of the credit of a particular witness had been put in issue."

In the case of a Crown witness, say Bruno Grollo, giving evidence inconsistent with his pleas of guilty, the prosecutor would be in a position to seek a ruling from the trial Judge that the witness was adverse. If the application were successful and general leave to cross-examine were given, then the pleas of guilty could be put to the witness in relation to the issue of credit.

32 Mr Stuart's fundamental submission was that although the prosecution should be permitted to cross examine these witnesses because they are clearly unfavourable, in the exercise of my discretion I should not permit the prosecutor to question them about their pleas of guilty to the charge of common assault. The submissions seemed to be based on section 135 of the Evidence Act. Having submitted that such cross examination could only go to credit (and I will deal with the issue of limiting the use to which the jury might put this evidence, next), Mr Stuart then said:

Then I move to what perhaps is the nub of the issue, particularly in relation to my client's parents. If that evidence were to go in, in combination, both parents, it is evidence that the jury may use against my client on a charge of murder that he was not acting in self-defence, because his parents have abandoned it, and because Mr Smith has abandoned it by their pleas of guilty to common assault. The danger, and clearly what I'm addressing Your Honour on is issues of discretion, the danger is that the jury could make too much of this matter to the prejudice of my client. If I can take it, we have at one extreme pleas of guilty to the least serious criminal offence of violence, common law assault, admissions by way of pleas of guilty into a trial where the issues are concerning the most serious offence known to the law, murder, and an admission by somebody so close to the accused as his parents, involved in precisely the same incident as to their activities, not his, but their activities around the same time, is, in my submission, highly prejudicial to my client, and that is the essence of the argument that I would be putting forward to Your Honour.[16]

33 Mr Stuart's concerns that the jury could make too much of the matter, whilst understandable, are capable of being met by judicial direction. Further, the "prejudice" that arises is one that tells against self-defence which may well be an important issue in the trial. In my opinion the evidence is relevant and the disadvantages that flow to the accused are not unfairly prejudicial.

34 Each of these witnesses has been involved in the incident and was charged by police on the basis of the evidence of other witnesses. They were charged with assault. To that charge they pleaded guilty and did so on the factual basis which was put before Coghlan J which was that at the time of their conduct, they were not acting in self-defence. Two months later, those witnesses made statements which are at odds with the basis of their pleas of guilty. Further, each of the three witnesses have made statements, given evidence on a Basha hearing and before the jury in the aborted trial. It is therefore known what they will say and the inconsistency between their evidence and their pleas of guilty to common assault is obvious.

35 They are each witnesses to the facts of what occurred and so, in accordance with its duty, the Crown must call them in the Crown case.[17] Two of the witnesses, Mr and Mrs Bourbaud, could have objected to giving evidence but have chosen not to.

36 Section 38 of the Evidence Act and its significant change to the common law in relation to "hostile witnesses" is obvious. In a careful and thorough ruling in this Court, Curtain J summarised that policy in DPP v McRae:[18]

In R v Lozano ('Lozano's case'), it was acknowledged that the purpose of the section was to ensure that the courts are not deprived of relevant testimony which had previously been excluded by operation of the hostile witness rule. The Australian Law Reform Commission, in its report of 2005, refers to the guiding principle under s 38 as "improvement in fact-finding by enabling a party who calls a witness to challenge unfavourable evidence by cross-examining that witness", and the report comments that the principle has been upheld by the operation of the section over the ten years since its inception, as it then was, and that despite some criticism, it had received strong judicial support. (citations omitted)

37 There is no debate on the issue of whether the prosecutor should be given leave to cross examine each of the three witnesses about their evidence which is clearly unfavourable. The question is whether they should be able to be cross examined about their pleas of guilty to assault and the factual basis on which they were sentenced. Consistent with that policy, it seems to me entirely appropriate that if each of these three witnesses give evidence describing relevant events and tending to suggest that their actions were based on the need to defend themselves or others from Mr Tiotala, the prosecutor should be entitled to cross examine them as to why they pleaded guilty to assaulting the deceased when self-defence would have been a complete answer to that charge. In assessing the evidence of these three witnesses, for the jury to be unaware of those facts would be inherently misleading.

38 In dealing with this application, I am obliged to consider the matters referred to in section 192(2) of the Act, as follows:

Without limiting the matters that the court may take into account in deciding whether to give the leave, permission or direction, it is to take into account -

(a) the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing; and

(b) the extent to which to do so would be unfair to a party or to a witness; and

(c) the importance of the evidence in relation to which the leave, permission or direction is sought; and

(d) the nature of the proceeding; and

(e) the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence.

39 The relevant sub-sections are (b), (c), (d) & (e). The evidence is, in my opinion, important and is concerned with the central issues in this case about how the deceased came to be fatally wounded and what was occurring at the time that happened. The question of unfair prejudice has been dealt with by my conclusion on the submissions Mr Stuart made about the exercise of my discretion and whether or not the use to which the jury might put this evidence should be limited. As I will outline shortly, it may be that I will limit the use that can be made of this evidence and I will rule on that once I have heard how the evidence falls.

40 I will therefore grant leave to the Crown pursuant to section 38(1)(a) & (c) of the Evidence Act in respect of each of these three witnesses permitting the prosecutor to cross examine each of them as to the inconsistency between the evidence they give and their pleas of guilty to assault, on the basis that any justification based on self-defence had been exceeded. Such cross examination may refer to the pleas of guilty to assault and must refer to the factual basis put forward to Coghlan J on which the pleas were dealt with. However, that is not the end of the matter.

41 As I have foreshadowed, the final question is whether, pursuant to section 136 of the Act, I should now limit the use to be made of this evidence. That section provides:

The court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might -

(a) be unfairly prejudicial to a party; or

(b) be misleading or confusing.

42 In Adam v The Queen,[19] dealing with the relevance of prior inconsistent statements, the High Court said: [20]

Evidence that is not relevant in a proceeding is not admissible. The first question to be considered is, therefore, whether the evidence of the out of court statements of Thaier Sako was relevant. That is, was it "evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding" (s 55(1)).

Contrary to the appellant's contention, deciding whether the evidence was relevant neither required nor permitted the trial judge to make some assessment of whether the jury would or might accept it. Section 55(1), with its reference to "if it [the evidence in question] were accepted", requires that relevance be determined on the assumption that the tribunal of fact accepts the evidence. Relevance is demonstrated if, were the evidence to be accepted, it could rationally affect the assessment of the probability of the existence of a fact in issue.

43 I take it that the question I must pose is whether the pleas of guilty to assault by these three witnesses, and any adoption they made by those pleas of the facts on which they accepted they should be sentenced, could rationally affect (either directly or indirectly) the assessment of the probability of the existence of several of the facts in issue in the proceeding. At this stage I do not feel I can answer that question. An important factor in this case is that these witnesses are to be cross examined about their plea and the extent to which they can be taken to have adopted the summary of facts on which they were sentenced, rather than about some prior inconsistent first-hand narrative of their own. On the explanations given by two of the witnesses on the Basha hearing to which I have referred, they may not in any way adopt the summary of facts put before Coghlan J and may give explanations for their pleas of guilty which lessen the effect of those pleas.

44 Therefore, whether a limitation on the use of the evidence is appropriate will depend on how the evidence actually falls before the jury. I propose to postpone a ruling on that matter until these witnesses have given their evidence and been cross examined by both the prosecutor and Mr Stuart. I should indicate that, given the two explanations so far given for the pleas of guilty, as presently advised I would be inclined to the limit the use of this evidence to the credibility of these three witnesses. However, I will not finalise my ruling about that until I have heard the evidence.

[1] See R v Basha (1989) 39 A Crim R 337 at 339 per Hunt J.

[2] Evidence Act 2008 Dictionary.

[6] Transcript of 29 November 2010 at 92.

[7] Transcript of 29 November 2010 at 61.

[13] [2010] VSC 114.

[14] Per Young CJ, Kaye and Gray JJ at 236.

[16] Transcript of 22 March 2011 at 17-18.

[17] See Apostilides v R [1984] HCA 38; (1984) 154 CLR 563; R v Shaw (1991) 57 A Crim R 425 (Vic CCA); Dyers v The Queen (2002) 210 CLR 285.

[18] [2010] VSC 114 at [21].

[20] Per Gleeson CJ, McHugh, Kirby and Hayne JJ at [21] & ff.