R v Ali

R v Ali - [2005] VSCA 302 - VSCA 2005 case summary — Zoe

1 Having had the benefit of reading the judgment that Charles, J.A. proposes to deliver, I agree with his conclusions and his reasons for reaching them, subject only to the following comments.

2 In the first place I continue to resist the use of the expression "after-events conduct" and the like in relation to lies and other examples of consciousness of guilt. The need for directions as to the use by the jury of evidence relating to events after the alleged crime has been committed is almost always (if not invariably) because the Crown puts forward that evidence as tending to show that the accused has exhibited a consciousness of guilt. It is because that consciousness connotes a form of implied admission on the part of the accused that judges are required to direct juries carefully about the use to which it may be put. If evidence of events after the commission of a crime does not suggest some form of admission, then that evidence may be used in the conventional way, primarily for the purpose of drawing inferences as to how the crime was committed and who participated in it. Sometimes it is hard to draw inferences backwards from events occurring later but that ordinarily would require the judge only to give careful directions as to inferences and circumstantial evidence, not because it shows that the accused has in some way or another admitted guilt. It is sufficient to say that it is very rare for any Crown case to conclude with evidence as to what happened when the blow was struck or the property taken, or whatever else might result in the establishing of the final constituent element of an offence. For example evidence as to the later medical condition of a victim may be used from time to time to show how the blow was struck or how serious it was, just as evidence of the behaviour of the offender after breaking into a house may be used to show the intent accompanying that entry. The warnings required in cases where the prosecution alleges consciousness of guilt are required because of the significance of the acts and the particular, special weight which the prosecution case puts on them, not because they merely occurred after the offence was committed. If the prosecutor does not use the evidence in that way, no directions are required unless it is obvious that the jury could use the evidence as an implicit admission on the part of the accused.

3 As to the direction required in a further trial of the applicant so far as the evidence of those who were at the time prisoners is concerned, I agree with what Charles, J.A. says on this subject. For myself I would doubt that juries require the assistance of special knowledge of judges on the subject of prisoners, certainly unless there is some factor in the witness's behaviour, unknown to the general community, which would make it more likely that they would lie in giving evidence at the trial. If they are or may be co-offenders in the commission of an offence, then I do not believe it is beyond the intelligence of the average juror to understand that they would be likely to try and cast blame on others, including the accused. It is difficult to speak in generalities, certainly as to the type of prisoners likely to be found in the custody centre below the Magistrates' Court but I would suggest that the average juror would ordinarily treat the evidence of a person either convicted, or even accused, of a criminal offence with a good deal of scepticism, whether that be justified or not and without any special warning by the trial judge. In the present case, however, it has been accepted that some direction ought to be given warning the jury to take caution when considering the evidence of the prisoner witnesses. I do not believe that the decision in R. v. Ali (No. 1)[1] involved a requirement that they be treated as witnesses upon whose evidence it would be "dangerous to convict". That was the submission made at that earlier appeal in relation to the warning given by the judge in the first trial set out in paragraph [35] of the report.[2] There was, however, in the first trial an error in the way in which the trial judge on that occasion dealt with evidence which might be confirmatory of the prisoner's version. As I read the decision[3] it was only the failure to give appropriate directions as to that confirmatory evidence or "corroboration" as it was there described, that was the basis upon which the relevant ground was upheld and the submission of counsel as

to the need to direct the jury that it was dangerous to convict was not upheld, albeit that the witnesses were described as "dangerous witnesses" from time to time. In the circumstances, however, and having regard to what Charles, J.A. has said on the subject, I believe it would only be necessary in this case for a future jury to be directed along the lines set out in paragraph [35][4], requiring relevant caution and scrutiny.

4 Otherwise the application should be granted and the appeal upheld.

[5]

5 The applicant on 23 October 2000 pleaded not guilty in the County Court at Melbourne to one charge of intentionally causing serious injury. The trial proceeded and on 27 October 2000 the jury delivered a verdict of guilty. On 5 December the judge sentenced the applicant to imprisonment for 16 years, and fixed a non-parole period of 13 years. The applicant sought leave to appeal against both conviction and sentence. The appeal was heard on 2 December 2002 and the Court allowed the appeal[5], quashed the conviction and sentence and ordered that a new trial be had.

6 On 5 May 2003 the retrial of the applicant commenced in the Supreme Court at Melbourne. The applicant again pleaded not guilty. On 19 May 2003 the jury again returned a verdict of guilty, and on 4 June the judge sentenced the applicant to the same periods of imprisonment and non-parole as had been imposed by the County Court judge after the first trial. The applicant once more sought leave to appeal against conviction and sentence.

The Crown case

7 The Crown alleged that the applicant, then aged 26, attacked and seriously injured the victim on 29 April 1999 when they were both in holding cells at the

Magistrates' Court in Melbourne. The victim, Michael Tully, who is now deceased was a fellow prisoner. On that day at approximately 1 p.m. twelve prisoners were temporarily housed in cell 28 in the Melbourne Custody Centre, which is directly below the Melbourne Magistrates' Court. The cell was overcrowded. Each cell has a static picture surveillance camera in it. The applicant and the victim were among those twelve prisoners.

8 The principal evidence at the trials was given by other prisoners who were in the cell at the time. The first such witness, Paul Cachia, said he observed a disagreement between the applicant and Tully, the applicant accusing Tully of being a child molester and a tamperer. The accusation was totally without foundation. The applicant was said to have spat at Tully and kicked or punched him. Tully was then very scared and shaking. The applicant was taken out of the cell by a prison guard, spoken to and then put back. Later, Cachia said he observed the applicant kick or punch Tully who dropped to the ground. The applicant then stomped on his head with his foot about three or four times. Tully could not breathe and was making a gurgling noise. There was blood everywhere. Eventually the prison officers came and removed the prisoners to cell 25. The applicant then told the other prisoners to say that Tully had had an epileptic fit. The applicant washed his runners with paper and water.

9 The next witness, Stephen Lagenhoff, was returned to cell 28 from court shortly before noon that morning. He said that the applicant accused Tully of being a paedophile and started to abuse him, and then kicked him in the stomach. Lagenhoff said that the applicant began to tell the other prisoners that Tully was "no good". He then hit Tully in the face, and the victim then fell onto his side and was crying. Lagenhoff said the applicant walked behind Tully and jumped on his head about four times with both feet. Some time later staff came in and took them out one by one and questioned them. Someone had covered up the security camera at the applicant's request. After the attack the applicant told the other prisoners to say that Tully had had a fit and then tried to wipe the blood from his shoes with toilet paper.

10 Another prisoner, Marcus Adam Smith gave evidence similar to that given by Lagenhoff, as also did a fourth, Wera Anusornchonsere. A fifth, Peter John Wilson, said the applicant called Tully a "tamp, a child molester" before he kicked him to the head/shoulder area. He looked away because he did not want to be involved. Later he saw Tully on the floor with a lot of blood everywhere and not moving, but making choking noises. He saw the applicant take off his shoes and put them in the wash basin to wash them. A sixth prisoner, John Benjamin Turner, saw the applicant kick Tully and then saw Tully hit the ground. Turner said he was asked by the applicant to place a plastic label from the prisoners' lunch packs over the camera and that he had to jump up to do it. He did not see the final attack on Tully, but when it was over saw Tully unconscious on the ground with blood coming from his mouth and ear. He said he heard the applicant say that "If someone asks, say he had a fit or he fell."

11 Various prison officers gave evidence of having observed some of these activities in the cell. In particular, a custody officer, Ronald Haysom, said that at about 1.05 p.m. he opened the louvres of the window to cell 28 and observed a person standing just inside the door moving in an anticlockwise motion kicking at a third party. He was pivoting around on one foot in a kicking motion, just starting an attack. The third party was wearing a light-coloured top. Haysom said he called for assistance, opened the door, and took the applicant out of the cell. The applicant said that someone had spat at him. Later Haysom returned to the cell and found the victim lying on the concrete bench with a pool of blood round his head. He heard the applicant say "He must have had a fit or a seizure or something" a few times.

12 Medical evidence was given by a surgeon from the Royal Melbourne Hospital of the fact that Tully had suffered a fracture of the right side of the skull and severe brain injuries. The medical evidence was that it was not expected that Tully would improve enough ever to be independent again and that his prognosis was grim. It was impossible for him to give evidence, indeed he had died before the second trial took place. A forensic biologist gave evidence of DNA testing of bloodstains found on the applicant's sock, the bottom of the right leg of his tracksuit pants and the heel of his running shoes, all of which he was wearing at the time, which indicated a match with the DNA profile obtained from Tully. The applicant refused to make a statement to police.

Ground 3 Admissibility of and directions on previous cross-examination

13 I now turn to the grounds of the application for leave to appeal against conviction. It is convenient to take first Ground 3 which alleged that the judge erred -

[14]

Later the prosecutor said[10] that the failure to put these questions by the defence was "a shift in the defence? A lack of confidence in the defence? Afraid of what the witness might say?"

17 Counsel for the applicant dealt with the issue in his final address by saying that the applicant did not have to "prove who did it". That it was "obvious nothing more was going to be gained by putting it again"; and that it "wasn't necessary to be specifically putting to people: 'You did this and you did that'."

18 When the judge came to charge the jury, his Honour said nothing about this issue. In particular, his Honour did not give any directions to the jury as to how such evidence might be or must not be used. Rather, his Honour simply repeated counsel's arguments on the topic.

19 In this Court it was submitted that the judge erred in allowing the prosecutor to read the evidence in the first place, that the evidence had no probative value, and that at no point during the argument or ruling on admissibility did either the prosecutor or the judge explain what the probative value was said to be. It was argued that if the evidence was to be admitted at all, it should have been done in re-examination of the particular witnesses concerned. It was submitted that the prejudicial effect far outweighed any possible probative value.

20 In this Court Mr McArdle submitted that a change of instructions, reflected by different cross-examination of witnesses, would have been a suitable subject for cross-examination of the applicant in the event that he gave evidence. Alternatively it was put that insofar as the applicant's case was to be deduced from cross-examination, it too may have been said to lack integrity because of the different approaches. He submitted that the applicant's counsel at trial had not submitted that the matter was irrelevant, rather it had been submitted that re-examination was the appropriate place for presentation of this evidence to the jury.

21 As Ormiston, J.A. said in Spiteri v. Visyboard Pty. Ltd.[11] there is little doubt that in certain circumstances the way in which a party conducts its case, particularly by putting questions in cross-examination, may lead to implicit admissions on behalf of that party which may be taken into account at a trial.[12] Ormiston, J.A. said later[13] in Spiteri -

[20]

Smith and Turner were not asked similar questions.

Conclusions as to ground 3

23 In my view the evidence of the cross-examination of the three prisoner witnesses from the first trial was inadmissible. It had no probative value at all. The simple fact was that at the first trial it had been put to Smith, Turner and Lagenhoff that they had assaulted the victim, an allegation they vigorously denied. At the second trial it was again put to one of them, Lagenhoff, that he had been one of the assaulters. To the other prisoner witnesses it was put that prior to the victim being assaulted the atmosphere became very heated in the cell and there was a "sort of mob hysteria".[16] The failure of counsel to put directly to two of the three prisoner witnesses, Smith and Turner, that they had participated in the assault, in my view, indicated no more than that the accused's instructions were that the assault had been perpetrated by a number of the prisoners in the cell. In light of the denials of Wilson and Turner at the first trial, defence counsel presumably took the view that there was no point in putting to them specifically that they had participated. To do so only invited further strong denials from them and, if the jury was impressed by such denials, would have reduced in their minds the number of potential assailants on the victim. In this way the cross-examination carried only the implication that the applicant said other prisoners had committed the assault on the victim but he was not then prepared to say which. There were, also, understandable forensic reasons why defence counsel might have changed his tactics at the second trial.

24 So put, the evidence had, I think, no probative value at all and should not have been admitted. Nor should it have been put in re-examination of Smith and Wilson. The evidence might possibly have been put in certain circumstances in cross-examination of the applicant if he had been called as part of the defence case. As it happened, the applicant did not give evidence. Furthermore, the obviously prejudicial nature of the evidence was amply demonstrated by the use made of the evidence in the prosecutor's closing address[17], and which I think far outweighed any probative value the evidence might be thought to have had. The evidence ought thus to have been rejected by the judge in the exercise of the Christie[18] discretion. In the event, the admission of the evidence permitted the prosecutor to put to the jury that the applicant had shifted his position and that the integrity of the defence was gone, and thus to make a strong attack on the credit of the accused and his defence. There was a risk that the jury might misuse the information as showing consciousness of guilt. Furthermore, it also risked shifting the onus of proof onto the applicant.[19]

25 Even if the evidence was properly admitted the judge was, I think, obliged to give the jury a careful warning as to how the evidence might be used and how it must not be used[20], particularly have regard to the use made by the prosecutor of the evidence and the importance he attached to it. No such warning was given. No exception was taken by defence counsel to the failure to give any directions on this topic. But having regard to the importance placed by the prosecutor on this material, the consequences of the failure to give such a direction were potentially serious. The judge himself in his ruling[21] had recognised that a warning by him "to keep the added material in perspective" was necessary.

26 Both grounds 3(a) and (b) should be upheld.

Ground 2 Directions on consciousness of guilt

27 This ground complains that the judge erred in his directions on "after-event conduct" and consciousness of guilt, and in particular erred in giving the following direction -

[24]

31 The applicant's case in this Court was that left to their own devices on this topic, the jury might have relied on a number of other matters as evidence of consciousness of guilt. First, apart from Peter Payne, there was the evidence of other prisoners in the cell that the applicant had told them to say that the victim had had a fit; there was the evidence of Anusornchonsere that after the attack the applicant had given him a jacket because he had blood on his T-shirt; there was the warning to other prisoners not to say anything; there had been the direction to Wilson to take the sticker off the camera after the assault had been completed (Turner having said that he had been told to put the sticker on the camera); there was the evidence of prison officer Cummins that the applicant had told him the victim had spat at him; there was the evidence of officers Haysom and Cummins that the applicant repeated to them that Tully had spat at him (which was relied on by the prosecutor as not truthful, but not treated as a consciousness of guilt lie); and finally, the entirety of the argument that the accused had changed his position as shown by the cross-examination of Wilson, Smith and Lagenhoff was also capable of being understood as evidence of consciousness of guilt.

32 Having regard to all these matters, Mr Grace argued that the judge's direction left the jury completely at large on this topic there being no directions given on the use to which this evidence might or might not be put. The risk of a miscarriage was said to have been increased by virtue of the fact that some four-and-a-half hours after retiring to consider their verdict the jury asked for a restatement of the directions on "after-events conduct" and were then given a copy of the transcript of the judge's directions on these topics. It followed that the jury then had the impugned direction in written form in the jury room. The jury were given no further directions on this subject thereafter.

Conclusion as to consciousness of guilt

33 The judge gave what was, with respect, an appropriate direction as to consciousness of guilt[26] in relation to the two items being the washing of the runners, and Payne's evidence as to the applicant having asked him "whether Michael Tully had had a fit". Indeed, the direction was in one respect too favourable to the applicant since the judge said -

[34]

Mr Grace then submitted that the effect of this passage is that if there is a possibility of joint fabrication, then the jury should be directed that the witnesses cannot corroborate each other. Whether there is such a possibility is, however, so the argument ran, a question for the judge, not the jury. This submission was made relying on the approach taken to what was said to be a similar question at common law of the admissibility of similar fact evidence where there is the possibility of joint concoction, and reliance was placed on Pfennig v. The Queen[32].

42 I do not accept that assistance is to be gained from the decision in Pfennig in this respect. It is true that in considering the question of the admissibility of similar fact evidence at common law,[33] the question is for the judge, not the jury.[34] The relevant passage in the judgments in Pfennig demonstrates that propensity evidence is a special class of circumstantial evidence, the probative force of which is to be gauged in the light of its character as such but noting that it has a prejudicial capacity of a high order. On the other hand, issues of corroboration, and the possibility of joint fabrication, are, I think, clearly jury questions.

43 Mr Grace also submitted that on the evidence in this case it was not open to exclude the possibility of joint fabrication and accordingly that the judge was wrong to give the direction he gave and should instead have directed that the prisoner witnesses could not corroborate each other. I do not accept this submission.

44 Application was also made to add a new ground 4(c) in the following terms, that the judge erred in leaving the evidence of prison officer Haysom of "What he saw Ali do as he looked through the glass" as capable of being corroborative. The prosecutor had listed this piece of evidence as being corroborative of the prisoner witnesses. This was disputed by defence counsel, who also maintained this objection in discussion with the judge prior to the charge.

45 In this Court it was submitted that Haysom's evidence of "What he saw Ali do as he looked through the glass" was incapable of being corroborative of the prisoner witnesses. Mr Grace argued that Haysom himself gave evidence to the effect that he did not see the kick connect and secondly that the person against whom it was directed was not Mr Tully. He argued that Haysom's evidence did not tend to prove that the crime (of intentionally causing serious injury) was committed or that it was committed by the applicant. Rather at best, when taken with other evidence and assuming error in Haysom's identification of the potential victim of the kick, it tended only to support the evidence that the applicant may have assaulted or attempted to assault the victim on an earlier occasion. He put it that this was plainly a different incident. I do not accept this submission. In my view, the evidence was admissible as potential corroboration as tending to connect the applicant with a crime charged and also as tending to show that the story of other prisoners that the accused committed the crime was true.[35] Three of the prisoners, Cachia, Lagenhoff, and Turner gave evidence of having seen the applicant abuse Mr Tully as a child molester, and then kick him in the area of his head or shoulder before the applicant was first taken out of cell 28 by Officer Haysom. Haysom's evidence also tended to support the case against the applicant as to motive.

46 I would accordingly reject ground 4. There remains a question, however, as to the form of any warning that should be given as to prisoner witnesses, in the event that there is to be a re-trial of the applicant.

The warning to be given on any re-trial

47 In this Court, Mr McArdle submitted that the judge in the second trial gave the jury a direction on the basis that prisoner witnesses were one of those groups of witnesses whose evidence as a matter of practice required corroboration. He submitted that there was no warrant for this direction since they were not prison informers as in Pollitt. Rather they were witnesses as to events; see R. v. Ton[36]. It was not in question that a Miletic warning was required[37].

48 In Pollitt it was decided that it will usually be necessary for the judge to warn the jury of the danger of convicting on the evidence of a prison informer unless it is corroborated by other evidence connecting or tending to connect the accused with the offence charged. Deane[38] and Toohey, JJ. [39] said that the warning should be moulded to fit the circumstances of the case. This is, of course, consistent with the approach later taken by the High Court in R. v. Jenkins[40].

49 Pollitt clearly explains and prescribes the form of the warning to be given to a jury when dealing with the evidence of a prison informer. But the decision is, I think, limited to the case of prison informers. In R. v. Ton the New South Wales Court of Appeal considered a case arising out of a fight which occurred in Parklea Prison involving an attack by one group of prisoners on another. All were serving prisoners and evidently persons not of good character. The appellant had submitted that as each witness was a prison informer the jury was required to be given a Pollitt-type warning. As Smart, J.A. said[41] -

[36]

50 Applying the reasoning of Smart, A.J. (and, with respect, I agree with it) a Pollitt warning was not required to be given, although it was never in dispute (as I have said) in this case that a Miletic warning was required. The prisoners were indeed witnesses to events and not informers. It would follow that the warning actually given at the applicant's second trial was unduly favourable to him. I should say that Ton had not been reported when the Court of Appeal allowed the applicant's first appeal against conviction and the Court was not referred to the decision itself, although counsel for the Crown certainly argued that the prisoner witnesses were witnesses to events and not police informers. The warning in Ton which was regarded by Smart, A.J. as "more than adequate on any view" is quoted in his Honour's judgment.[42]

51 During argument in the present appeal, it was suggested that this Court in its decision in the first appeal had decided that a prison informer warning was required to be given at any further trial of the applicant. If the Court so decided, then it was said it would be an abuse of process for the Crown now to oppose the giving of a Pollitt warning at any re-trial.[43]

52 The ratio decidendi of R. v. Ali (No. 1)[44] does not require the giving of a Pollitt warning in the circumstances of the present case. The principal ground of the decision was that no directions had been given concerning the prosecution's claims that the accused's post offence lies and conduct allegedly revealed a consciousness of guilt. A second ground, however, also succeeded in that the trial judge gave inadequate warnings in relation to the evidence of the prisoner witnesses since he failed to identify the evidence said to be capable of supporting the versions given by the prisoner witnesses.[45]

53 The applicant's counsel at the first appeal originally sought to argue that the prisoner witnesses were "accomplices" or "informers". As Phillips, C.J. pointed out[46], however, counsel came to accept during argument that the prisoner witnesses were more appropriately to be treated as persons who, although not technically involved in the attack, were likely to have similar motivations to accomplices and informers. Phillips, C.J. stated and accepted that at the first trial both counsel and the judge were in agreement that some warning as to the evidence of the prisoner witnesses needed to be given, and set out[47] the warning in fact given. Counsel argued that the directions given were inadequate and proffered a set of "suggested directions". His Honour then referred to counsel's submission that the trial judge had failed to identify the pieces of evidence which were capable in law of constituting corroborative evidence if the jury accepted them and contended that the jury had been "simply left at large on that question".

54 In accepting the second argument put by counsel for the applicant, Phillips, C.J. stated[48] that there had been "a failure by [the trial judge] to identify for the jury those pieces of evidence capable in law of constituting corroboration of the prisoners' evidence", and that the jury had been left at large in that matter. It was only in this respect that the judge's warning was criticised by the Chief Justice. His Honour then indicated what were the four pieces of evidence which in his view had the above capacity. The conviction was set aside and a new trial ordered. The judgment of the Chief Justice plainly did not require or even suggest that in any re-trial a Pollitt warning must be given.

55 It is plain that at the second trial, the judge and counsel all took the view that the effect of the decision on the first appeal was that a Pollitt warning was required to be given. This approach, which I think, with great respect, was mistaken, is no doubt explained by the fact that in my concurrence with the Chief Justice's reasons, I said -

At a glance

Court

Decision date

Before

Source

Judgment (44 paragraphs)

Parties