R v Beljajev [2006] VSC 413

Supreme Court of Victoria|2006-11-03|Before: COLDREY J

Criminal Law and Procedure - Murder - Notice of Alibi listing Crown witnesses - Consideration of application of sections 399A and 399B of the Crimes Act 1958 (Vic.) - Notice of no effect

1 On 7 September 2006 Boris Beljajev (the accused) was committed for trial on one count of murder. On the same date an oral notice of alibi was given to the Magistrates' Court through his counsel. It related to three witnesses - Oswald Tauschek, Annie Khoo and Jennifer Cody (the witnesses). Subsequently, a document headed: "NOTICE OF ALIBI" and dated 18 September 2006 was given to the Director of Public Prosecutions. The relevant parts were in the following form:

"TAKE NOTICE that the accused Boris BELJAJEV under the provisions of s.399A of the Crimes Act, 1958 (Vic.) gives notice (as provided at the end of the committal hearing on 7 September 2006) of the following alibi evidence:

1. Oswald TAUSCHEK: Witness has provided statement to police at p.157 of the Hand Up Brief and address is known to the Informant;

2. Annie KHOO: Witness has provided statement to police at p.164 of the Hand Up Brief and address is known to the Informant;

3. Jennifer CODY: Witness has provided statement to police at p.166 of the Hand Up Brief and address is known to the Informant;"

2 The statute law relating to such notices and their effect is found at ss.399A and 399B of the Crimes Act 1958 (Vic.) (the Act). The relevant parts of s.399A are as follows:

"399A. Alibi evidence

(1) On a trial on presentment the accused shall not without the leave of the court adduce evidence in support of an alibi unless, before the end of the prescribed period, he gives notice of particulars of the alibi in the manner provided by sub-section (4).

(2) Without prejudice to sub-section (1), on any such trial the accused shall not, without the leave of the court call any other person to give such evidence unless--

(a) the notice under that sub-section includes the name and address of the witness or, if the name or address is not known to the accused at the time he gives the notice, any information in his possession which might be of material assistance in finding the witness;

(b) if the name or the address is not included in that notice, the court is satisfied that the accused, before giving the notice, took reasonable steps to secure that the name or address would be ascertained;...

...

(4) Notice under sub-section (1) shall either be given in court during or at the end of the committal proceedings, or be given in writing to the Director of Public Prosecutions; ...

...

(7) In this section--

'evidence in support of an alibi' means evidence tending to show that by reason of the presence of the accused at a particular place or in a particular area at a particular time he was not, or was unlikely to have been, at the place where the offence is alleged to have been committed at the time of its alleged commission; ..."

3 One effect of giving a notice of alibi is set out in s.399B in these terms:

"399B. Provision relating to witnesses to alibis

No one who has been named or referred to as a proposed witness in any notice given by the accused under the preceding section shall, before the conclusion of the trial for the purposes of which the notice was given or any re-trial which may be directed, be communicated with directly or indirectly by any person acting for the prosecution or by any member of the police force with respect to the case or to any matter related thereto, unless in the presence and with the consent of the accused's legal practitioner or, where he is unrepresented, the accused himself; and any such person or member so communicating with knowledge of facts which render his conduct a contravention of this section shall be guilty of a contempt of the court of trial and may be dealt with by it accordingly."

4 The witnesses Tauschek, Khoo and Cody may be compendiously described as Crown witnesses. Each gave a statement to investigating police and such statements form part of the hand-up brief served on the accused.

5 At the committal proceedings only Tauschek was called to give evidence. Although the other witnesses were the subject of a defence request to attend for cross-examination, apparently they were unavailable. (I was informed that each was overseas.)

6 It was conceded by the Crown that the defence would be entitled to conduct a Basha inquiry in relation to Khoo and Cody prior to the commencement of the trial.

7 At the time of giving the "oral notice of alibi" defence counsel stated:

"We invoke the rights normally attached to alibi witnesses."[1]

This was, as became apparent, a reference to the conditions governing any contact between such witnesses and members of the police force or persons acting for the prosecution.[2]

8 The reason for the defence giving a notice of alibi was articulated both at the committal and before this Court. In broad, and somewhat crude terms, it was asserted as a fear that these witnesses might be "nobbled" by the prosecution, unless the safeguards of s.399B applied to them.

9 However the defence indicated that consent would be forthcoming for the witnesses to be spoken to in the presence of the accused's solicitor.

10 In turn, the Crown characterised the notice of alibi as a device to prevent the proescution communicating with witnesses it would be obliged to call in the normal course of events.

11 Before turning to specific arguments relating to the validity of the alibi notice, it is desirable that the factual background, so far as is relevant, be briefly set out.

12 The prosecution case against the accused is that at approximately 12.40 p.m. on 15 June 2005, in Sycamore Grove, Balaclava, he stabbed Alex Ristic (the deceased) causing his death.

13 In the preceding weeks, both the accused and the deceased had been in constant mobile phone contact and, at one stage, were both present in Perth. Earlier, in May 2005, the accused had retrieved some platinum jewellery from the deceased which he, the deceased, had apparently obtained in Perth during April.

14 On 14 June, following further phone contact with the accused, the deceased told his wife of his intention to meet the accused the following day. He also indicated his intention not to give the accused $5,000 which the accused wanted from him.

15 On 15 June the accused, driven by Oswald Tauschek, visited Cabrini Hospital at 10.40 a.m., leaving at 10.45 a.m. These movements and times were captured on CCTV security cameras. Thereafter, according to Mr Tauschek in his signed statement, he drove the accused to his doctor in Hotham Street, St. Kilda where he remained for about 10 minutes. He then drove the accused around Acland and Carlisle Streets, St. Kilda as well as Beach Road, before arriving at Hahndorf's Fine Chocolates in Brighton Road, Elwood. Mr Tauschek placed the time of arrival at about 11.30 or 11.45 a.m. According to his statement he and the accused had two hot chocolates and two coffees respectively and remained at the café for a period of 40 minutes or a little longer. The accused paid for the drinks and the two men also bought some chocolate.

16 The witness told investigating police that he dropped the accused home about midday, but he did not know how long it was after that time.

17 A receipt obtained from the café indicated a payment for drinks and chocolate was made at 11.52 a.m.

18 The relevance of this time was that a witness, Peter Mikk, placed a person allegedly fitting the accused's description in Glen Eira Avenue, Balaclava just after midday, arguing with two males and brandishing a knife. (In cross-examination the witness appeared to extend the possible time frame to between 11.45 a.m. and 12.15 p.m.)

19 In the meantime, the deceased had dropped off his mother at her doctor's St. Kilda surgery at 11.21 a.m. He picked her up at about 12.32 p.m. and, at 12.34 p.m., phoned the accused. Telephone call charge records indicate that both men were in the Balaclava area at the time of that call. After this call, which was the last made by the deceased, he told his mother he had to meet a man called Boris (and another person).

20 The deceased dropped his mother off at shops in Balaclava and told her he would be back to collect her shortly.

21 The Crown case is that, shortly thereafter, the accused had an argument with the deceased in Sycamore Grove, Balaclava before he stabbed him in the abdominal area. As I have already indicated the time this occurred is put at 12.40 p.m. In this regard the Crown placed some reliance on the witnesses Robert Van Dam and Sandra Fernandez.

22 It is the Crown contention that the person identified by appearance and clothing at the midday altercation in Glen Eira Avenue, Balaclava, is the same person who later stabbed the deceased and that this person is the accused.

23 At the committal proceedings, during cross-examination, the witness Tauschek appeared to agree that payment for both the drinks and the chocolate was made prior to he and the accused consuming the drinks. He further agreed that this was a procedure that the accused adopted quite often. Such an account, coupled with his police statement of remaining at the premises for about 40 minutes or longer would, on its face, be capable of providing an alibi for at least the 12 midday incident. However, the state of the evidence is not quite so clear cut. It was further put in cross-examination that there were two visits to the coffee shop interspersed by a trip to the accused's flat (with the witness driving) where a misplaced bag was retrieved. It was put that on each occasion at the coffee shop one drink was consumed. The witness, in effect, agreed with these propositions. The activities undertaken in this period will no doubt be advanced as undermining the Crown's allegation of the accused's participation in the initial confrontation. But, in any event, unless there were two trips to the coffee shop, the defence would be faced with the unlikely situation of the accused paying upfront for not one but two cups of coffee and two hot chocolates.

24 In fact, the statements of the witnesses Khoo and Cody support the contention that both the accused and Tauschek returned a second time to the café. Each witness placed the arrival of the persons the Crown allege are the accused and Tauschek at about 10.30 a.m. This, of course, cannot be correct, given the CCTV camera record of the accused at Cabrini Hospital at 10.45 a.m.

25 The evidence of Ms Khoo is that the men stayed at the café on the first occasion for about 30 minutes and the inference from her police statement is that payment for the first drinks and chocolate was made at the time of leaving (namely11.52 a.m.) She states:

"They stayed in the store for about 1/2 hour on this occasion. They had their drinks and both bought the same chocolates to take away. The dark haired man paid for all the chocolate. The bill total was about $40 or a little more. He gave me a $50 note and I think the change was about $4. I saw the two men leave and walk out the front door."

This account would, prima facie, give the accused the opportunity to be in Glen Eira Avenue at 12.10 p.m.

26 In her account, Ms Cody, after describing the two males and the purchase of the chocolates, stated:

"I did not speak to these males and I did not recognise these males when I returned to the office. A short time later I heard the cash register being used and Annie mentioned, 'Will I see you later?' I heard the male's voice say, 'Yeah, we will be back.' I heard the door open and I heard them leave. I believed they would have left around 10.30 a.m. to 10.45 a.m."

The witness went on to describe the return of the two males at about 1.00 p.m.

27 Although the time of the initial observation is clearly erroneous, the use of the cash register at a time proximate to the accused and Tauschek leaving the premises, enables a similar inference to be drawn as to the time of departure as that contained in Ms Khoo's statement.

28 What emerges from this brief analysis is that, whilst the evidence of Mr Tauschek may be capable of constituting him as an alibi witness, the material in the current statements of Ms Khoo and Ms Cody do not bring them within the category of alibi witnesses. Indeed, counsel for the accused conceded in argument that they were not alibi witnesses in the traditional sense. In my view, the material presently disclosed by their statements, does not constitute "evidence in support of an alibi" as defined in s.399A(7) of the Act.

29 That, of course, is not an end to the matter, because of the situation of Mr Tauschek. Moreover, it is convenient for the purpose of argument to notionally treat Ms Khoo and Ms Cody as alibi witnesses.

30 The defence submission was that s.399A envisaged two types of alibi evidence; namely, that adduced in support of an alibi during cross-examination of a witness which the Crown had a duty to call; and that adduced from a witness called by the defence. It was put that such an interpretation of this section was consistent with the duty owed by the Crown to an accused person to call all material witnesses whether they advanced the Crown case or not; the accused's right not to call evidence if the relevant evidence rested with one of the Crown's own witnesses; and the concept that there was no property in witnesses. These propositions are each unexceptionable but do not, in my view, inexorably point to the specific interpretation of the section contended for by the defence.

31 Conversely, it was argued that any other interpretation of the section could prevent the accused relying on a witness the Crown was obliged to call, if that witness tended to provide an alibi for the accused.

32 On behalf of the Crown it was submitted that s.399A was directly solely to alibi witnesses which the defence intended to call at trial. Reference was made to the history of the provision as revealed in Report No. 2 of the Law Reform Commissioner (pp.8-12) and the Second Reading Speech of 27 May 1976 which introduced the ensuing legislation. This material demonstrated, so it was submitted, that the section is designed to prevent the Crown being taken by surprise by the defence advancing a very late alibi.

33 The Crown raised two additional arguments as to why the interpretation of s.399A contended for by the defence should not be accepted. First, by operation of s.399B it could potentially prevent the Crown from undertaking its responsibility of assessing the reliability of witnesses it was ostensibly obliged to call. This was because the witness would effectively be quarantined and unavailable for interview except with the consent and in the presence of, the accused's legal representative.

34 Secondly, it was asserted that, notionally, the notice of alibi procedure could be used to prevent the Crown having access to any number of witnesses that it was required to call.

35 In my opinion the second contention lacks substance. Any blanket use of the alibi procedure would easily be exposed as an abuse of process. The first contention, however, has more substance, since a prosecutor may not have the benefit of observing a potential witness being cross-examined either at committal or in any subsequent Basha inquiry. Further, if the defence submission is correct, consent for the Crown to communicate with its own witnesses could be refused.

36 The genesis of any consideration of the operation of s.399A and s.399B of the Act is the Report of the Law Reform Commissioner (The Hon. Thomas Smith QC). In his report the Commissioner had, inter alia, this to say:

"Where a defence of alibi is relied upon by an accused at his trial the Crown very often has had no previous indication whatsoever that this will be the defence. The accused has then the advantages of complete surprise, and these ordinarily include the prevention of the Crown from making any investigation into the alleged presence of the accused himself, or the supporting witnesses, at the place, or in the locality, where they swear they were at the time when the act charged was committed.

In such circumstances the Crown Prosecutor, in his cross-examination of the accused's witnesses, can do little beyond bringing out any matters affecting their characters, of which he may have been able to obtain instructions after their entry into the witness box, and any relationship or association that exists between them and the accused. He can, it is true, put forward general arguments about the ease with which an alibi may be transferred from one date to another and about the failure of the accused to mention the alibi earlier. As against this, however, the accused can point out that the alibi evidence is uncontradicted, that the Crown laid the charge and has the onus of proving it, and that he was under no obligation to tell the Crown before the trial what his defence was going to be. Accordingly, the members of the jury find themselves invited to weigh conflicting arguments, based on the most general considerations, in relation to a matter of which all real investigation has been precluded.

Where the evidence of the alibi is true, no harm, of course, results. But where it is untrue, whether it be perjured or merely mistaken, the likelihood of the truth emerging at the trial will obviously be greatly reduced by the prevention of investigation. ...

The Committee considered that the continuance of the power of accused persons to prevent the Crown from investigating the truth of alibi defences could not be justified. And it recommended that, unless particulars of such a defence were given within certain defined periods, the accused should not be entitled to adduce evidence in support of it except by leave of the court. ...

... the advantage that a surprise defence of alibi gives to the defence lies in the prevention of investigation. This favours a person putting forward a false alibi. But an innocent person putting forward a true alibi obtains no advantage from prevention of investigation, unless it be in the elimination of any possibility of improper attempts to influence his witnesses. And against that possibility safeguards can, of course, be included in the proposed legislation. ...

The safeguard from which there was the most general support was a prohibition of communication by the police with the witnesses of whom notice had been given, except in the presence, and with the consent, of the accused's legal advisors or (if he is not represented) the accused himself." [3]

37 The recommendations of the Law Reform Commissioner which were enshrined in draft legislation[4] were essentially encapsulated in the legislation introduced in May 1976. In my opinion, the extracts I have quoted from the Law Reform Commissioner's Report (which was the clear source of the legislation), and the legislation itself, make it abundantly clear that the purpose of the legislative reform was to prevent the situation arising where the Crown could not investigate the bona fides of an accused's alibi witnesses and was consequently hampered in its cross-examination of them. The quid pro quo of the requirement that details of such witnesses be revealed was the establishment of safeguards against the use of improper pressure against such alibi witnesses. These safeguards have been translated into s.399B of the Act.

38 In my view, s.399A(1) and (2) have the same intent. I do not accept the submission that the defence could not cross-examine a Crown witness as to possible alibi evidence without the giving of an alibi notice. Since the Crown will have signed and sworn statements from the witnesses it intends to call, it is difficult to conceive of a situation where it would not know of the content and ambit of the proposed evidence of such witnesses. If a witness deviated radically from that proof of evidence, the Crown could seek to deal with the situation by having that witness declared hostile.

39 In these circumstances, the proposition that an accused need give notice before cross-examining a designated Crown witness as to a possible alibi flies in the face of the adversary system.

40 More importantly, however, the legislation, properly construed, does not support this proposition.

41 The provisions of s.399A(1) of the Act require an accused to give particulars of his (or her) alibi in the manner prescribed by subsection (4) of that section. If this is not done, then the leave of the Court will be necessary before any evidence in support of an alibi may be produced.

42 What are the particulars required pursuant to s.399A? This matter was discussed 20 years ago in R v Sorby[5] by the Victorian Full Court. At the time of that decision the content of the notice of alibi was prescribed by the Crimes (Alibi Evidence) Regulations 1976. It is now relevantly set out in Form 1 of the Crimes (Alibi Evidence) Regulations 2003. Such a notice must not only contain the matters set out in subsections (2)(a) and (b) of s.399A, but importantly, it must also state the facts upon which the accused relies to establish the alibi.

43 In interpreting this legislation it is important to recognise that the facts (or particulars) upon which an accused relies may exist independently of any other witnesses. Those facts may be constituted by the accused's own account, simpliciter, or by the accused's account advanced, for example, with purported documentary corroboration. In other words, it need not be an account corroborated by witnesses. However, (absent the leave of the Court) before any alibi evidence whatsoever may be adduced from either the accused himself, or from any other witness, the particulars required by subsection (1) must be provided. If, in addition, the accused wishes to call "any other person" to give alibi evidence on his behalf, then there must also be compliance with the requirements of subsections (2) (a) and (b) of the section. Not only does this interpretation allow the words of the section a natural and sensible meaning, it also accords to the section a meaning which is totally consistent with its legislative purpose as disclosed in the source materials to which I have referred.

44 Moreover, it is not insignificant that the safeguards in s.399B adhere to "a proposed witness" specifically referred to in any notice given by the accused. The natural meaning to be attributed to this sub-section is that it refers to a witness proposed to be called by the accused and not a Crown witness proposed to be cross-examined by the accused.

45 Accordingly, for the reasons I have enunciated, I regard the notice of alibi in relation to the witnesses as misconceived and of no effect.

46 Before departing from this matter I should indicate that, given the somewhat unusual circumstances facing the defence because of the truncated nature of the committal proceedings, I am not prepared to find that the giving of a notice of alibi was anything but a bona fide forensic decision. Similarly, I regard as entirely appropriate, the actions of the Crown in seeking to ascertain the legal status of the notice of alibi in order to avoid any possible contempt of court.

[1] T.200

[2] T.201-2

[3] At pp. 8-11

[4] See Appendix C at p. 29

[5] [1986] VicRp 77; [1986] VR 753 at 770

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