R v Cacic [2001] VSC 483

Supreme Court of Victoria|2001-12-11|Before: TEAGUE J

Ruling - Evidence Act 1958 - Section 55AC - Incapacitated witness - Modifications to procedure calculated to avoid or minimise unfairness to accused

These are my reasons for my ruling as I did on 6 December 2001, that I would not preclude the introduction into evidence by the Crown of the testimony of Patricia Paull. The trial before me is of Ivan Cacic on a charge of the manslaughter of Desmond Hallinan in September 1999. The deceased was a barperson at the Royal Hotel in Footscray. He died from brain injury, after the tip of a pool cue passed through his left eye socket and then disrupted cerebral arteries. The pool cue came to enter the eye when the deceased went to break up an argument at the hotel. The accused and at least one other man were in the argument. The Crown case was that the accused moved a pool cue into or towards the face of the deceased.

There was an earlier trial of the charge before Justice Vincent in April 2001. The jury could not agree and was discharged. Oral testimony was given at the first trial by Patricia Paull. Amongst other things, she said that she saw the accused swing a pool cue so that it hit the deceased in the face. That evidence was recorded and transcribed. There was not a videotape record. Mr Kayser, prosecuting, applied under Section 55AC of the Evidence Act that the evidence be admitted at the trial before me. Put shortly, that section provides that testimony at an earlier trial that is recorded and transcribed is admissible at any subsequent trial in various circumstances, including where the witness is incapable of giving evidence. Mr Kayser informed me, and Mr Steward who appeared for the accused accepted, that Patricia Paull had suffered cancer which had led to her having had her tongue surgically removed after the first trial. He also informed me that she suffered badly from arthritis. That was a material consideration, because of the character of the evidence given at the first trial. The transcript revealed that, on approximately 40 occasions, the witness gave a physical form of indication or demonstration of movement. On the one hand, it was possible to infer most of what was being demonstrated from what was recorded. On the other hand, the demonstration of certain crucial movements could not be readily inferred. That was so, specifically as to the way in which the witness demonstrated how the accused moved the pool cue before it made contact with the deceased.

Initially Mr Kayser applied to introduce the testimony in the absence of the witness. At that stage, Mr Steward applied to have the testimony excluded altogether because of the potential prejudice arising from the inability of the jury to see or infer the character of the crucial movements that the witness was demonstrating. I expressed sympathy with that position. After obtaining instructions, Mr Kayser arranged for the witness to attend court. In the absence of the jury, the witness was wheeled by a carer into the courtroom in a wheelchair. She looked elderly and frail. I talked to her for a time to assess what form of communication might be appropriate. It was apparent that she was mentally alert. She could appropriately nod and shake her head. She could "mouth" without sound certain words. Her hands were obviously arthritic, but she could move them around. Mr Steward was given the opportunity to cross-examine her on the voir dire. He asked her to give a demonstration of movements which were the subject of the testimony at the first trial. Mr Steward then made his application that I rule that the Crown not be permitted to call her.

Mr Steward submitted that his client would be seriously and unfairly prejudiced because of a combination of factors if evidence was led from Patricia Paull. One factor arose from the witness having given a demonstration on the voir dire that was, on his assurance, fundamentally different to the demonstration she had given at the first trial. He submitted that the demonstration given at the first trial was crucial to the case that was put for the accused. He invited me to draw that conclusion from a review of certain passages in the transcript of proceedings at the first trial. Another factor arose from the prospect that the witness might give to this jury a similar demonstration to that she had given on the voir dire. He argued, that, if the witness did so, there would be a inconsistency with prior evidence such that extensive cross-examination would be required to address the inconsistency. Such cross-examination, he submitted, could only be unsatisfactory from the viewpoint of the accused for a combination of two reasons. The first lay in the difficulty of counsel framing questions that made for effective cross-examination of a person who could respond inadequately. The second lay in the potential that extensive cross-examination of a seriously incapacitated witness would arouse antipathy towards the cross-examiner, and hence to the accused.

I declined to rule that the witness not be called. I did so in part because I had no effective means of satisfying myself as to whether any demonstration given before me was different from any demonstration given at the first trial. In that regard, I had noted comments made by the judge who presided at the first trial as to the inappropriateness of certain verbal summaries provided before him of demonstrations. Of much more significance was that I was satisfied that an assessment of the potential for unfairness was essentially speculative. I was satisfied that it was preferable to proceed in a measured way to take certain steps to introduce the evidence in accordance with Section 55AC, but with modifications aimed at minimising the prospect of any unfair prejudice to the accused. The first step was for me to give detailed directions to the jury including as to the circumstances which warranted the testimony from an earlier trial being introduced, and as to the difficulties facing both the witness and counsel for the accused. The second step was to have the testimony read. The third step was to have the witness sworn in and the placed in a position in court in which her actions could be video-recorded. The fourth step was to permit the witness to be asked to demonstrate before this jury what she had demonstrated before the jury at the first trial. The final step was to permit counsel for the accused to cross-examine the witness and not in a way that was limited to the demonstration. I was satisfied in prospect that that course would minimise any potential for unfairness. I would add that I was satisfied, after that course had been followed, that there appeared to be no unfairness.

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