R v Costello

R v Costello - [2012] WASCA 252 - WASCA 2012 case summary — Zoe

[91]

What happened when Ms Turner was stopped at the airport was that she was caught red-handed with drugs strapped down her pants, as I understand it, and admitted that to the police. What she then went on to tell the police was the first of four different versions of events that she has given regarding how she came into possession of these drugs. What is clear is that she was trying to protect whoever was actually behind the supply of the drugs. She did that by telling the police that a man named Jim, who she had met at the races, supplied her with the drugs and paid for an airline ticket for her to come to Perth. She's changed her story about Jim and how she came to meet Jim a number of times and as late as last week, she's given her fourth version of events as to how she got possession of those drugs. And now [she] says it was through Alex Shalala and she says that the intended recipient of the drugs was Mr Cotic. What she was doing in telling the police that Mr Cotic was the intended recipient of the drugs was protecting the people who were really behind this operation from the police, possibly because she was fearful for her son's wellbeing or the people who were actually behind the drug importation. She is, and I will be suggesting to you at the end of this trial, the lynchpin of the prosecution's case. If you take away her evidence, if you find her to be unreliable, I will be suggesting to you that you could not possibly find Mr Cotic guilty of this offence. Ms Turner falls, leaving aside the fact that she's changed her story four times and I'll take her through in detail when I cross-examine her [on] each of those different stories, she's told police face-to-face on a video record of interview first, then in a written statement, which has attached to it a declaration that she's making an offence if she includes anything false in it, which was a complete pack of lies. Then through her counsel thirdly, in her sentencing in one of these courts before a different judge than his Honour, where her lawyer then put the third version of events out for the first time. And then fourthly and finally, last week when she meets with my learned friend who goes to speak to her in prison, and she tells a completely different story for the first time and that's her fourth version of events. I'll be asking you to closely scrutinise the evidence that she gives in this trial because it is completely and utterly critical to the prosecution case against Mr Cotic. Leaving aside ... the fact she's made four versions - four different statements, given four different stories about these drugs; leaving that aside she, just by reason of the fact that she's involved in this crime, is known to the legal system as, through hundreds of years of experience, as falling into the category of probably the most unreliable witness that will ever give evidence in court: they're called an accomplice.

People who are involved in criminal activity tend to blame and maximise involvement of people around them, sometimes who are not involved, to save their own skin. And Ms Turner had a very big carrot dangled in front of her to incriminate Mr Cotic. And I will go into that as well when she gives her evidence (ts 42 - 44).

[132]

In this case, there's evidence that Mrs Turner lied to the police ... as to the circumstances in which she came into the possession of the methylamphetamine. At trial, she admitted that what she said about getting the drugs from a person called 'Jim' at the races was false and was done to protect the identity of Shalala due to the fear of implicating her son, Scott. She maintained this facade throughout, up until shortly before the trial. She maintained that it was Shalala that gave her the drugs and that her son, Scott, was not present, but told her not to do it.

It's the evidence that she gave in this court that is her evidence, not what she said on any prior occasion. But you will have regard to what she said on the prior occasion as to whether you consider her to be a credible witness when considering the evidence she gave in court. So you use the prior inconsistent statement in the process of assessing her evidence. What she said on a prior occasion isn't the evidence. The evidence is what she gave here. But you assess that if she has said something to other people on other occasions: is she a credible witness? Is she reliable? When she gave her evidence in court, was she then telling the truth that you could rely on? It's apparent from the evidence of her son, Scott, that he played a role in the delivery of the package to his mother, that she had not disclosed to this court or to you. In weighing up the effect of this inconsistency or discrepancy and the extent to which it differed from the evidence of her son, you need to consider whether there's a satisfactory explanation for it. For example, do the errors in her evidence result from some innocent error, such as faulty recollection? Or could there be an intentional false - or that is to say, seeking to deny or conceal the involvement of her son, who has, obviously, a history of drug addiction, as was apparent from his testimony, having previously [been] on, I think he said he was a heroin addict and then been on a methadone program for something like 12 or 14 years. You will make your own assessment of Mr Scott Turner when you evaluate the evidence. And in the process of that, you will have regard to the differences between his evidence and that of his mother, as to where perhaps the truth lies in the manner in which she obtained, and came into possession of the drugs that were found on her person when she was arrested at Perth Airport. You need to be aware of the discrepancies and inconsistencies and where you find them. And carefully evaluate all the testimony in the light of those inconsistencies. What I've said, by way of considerations, are only examples. You may well think of other general considerations that will assist. It is, as I've said, up to you as to how you assess the evidence and what weight you give to any witness's testimony or to any exhibit (ts 427 - 428).

[134]

Can I turn now to a matter that was raised by counsel in their addresses concerning the question of the evidence of Mrs Turner, who was an admitted co-offender, and also the evidence of her son, Scott Turner. You should carefully scrutinise the evidence of each of them insofar as they were involved in the same offence with which the State has charged this accused. The reason why you must carefully scrutinise the evidence is that Mrs Turner, and to an extent her son, have a certain degree of self-interest in giving evidence such that they might seek to justify their conduct in the offence and limit their involvement, and to shift blame onto others. This was perhaps more appropriate in relation to Mrs Turner rather than Scott Turner, but Scott Turner readily admitted being involved in this offence, notwithstanding that his mother had effectively given exculpatory evidence relating to him, he acknowledged that it was he who took the package along with the card to his mother the night before, at the behest of Mr Shalala who had driven him around there and told him to run it up to the flat. The evidence of Mrs Turner is really limited, however, as to what she was required to do, and her testimony as to what was to happen is limited. It was essentially directed to the role that was played by Mr Shalala. It was suggested to her that she was blaming the accused to cover up the person in Perth, for whom she was intending to give the drugs. She emphatically denied that suggestion. However, the fact that ... there was a degree of self-interest is not a reason in itself for you to reject the evidence of a person who is an accomplice or a co-accused such as Mrs Turner. But it is, however, a reason for you to scrutinise her evidence closely, to compare it with what is known about the circumstances of the offence from other evidence, and what other facts can be accepted by you as truthful and reliable. It is a matter for you to consider whether you accept the evidence of Mrs Turner and that of her son, Scott. In this case, Mrs Turner admits being involved in the commission of the offence, and has been convicted and sentenced for that offence. Perhaps she has sought to implicate the accused and to give an untruthful account because she apprehends that she has something to gain by doing so. You know that she pleaded guilty, and she indicated she was prepared to give evidence against the accused in this case. You may consider that she had an expectation of being dealt with more leniently as a result of her cooperation from the authorities. The defence points to this and says you should carefully consider her evidence because of the risk of her giving false evidence in anticipation of favourable treatment. The prosecution submits to you that she is a truthful and reliable witness, and says that when you consider her evidence, you could rely on it. It's a matter for you what weight you give to the evidence of Mrs Turner and to her son, but you should bear in mind the warning that I've given you when you consider that evidence. It's important to note, however, that the evidence of Mrs Turner did not directly implicate the accused, she did not know him and had no dealings with him until she arrived at the airport. The accused says he only went to the airport at the request of Scott Turner. Scott Turner emphatically denied that account. Those are matters that you will need to decide upon the whole of the evidence (ts 431 - 432).

[142]

The power of the judge to reject a question in the absence of objection should also be exercised with circumspection. It would be appropriate to do so where the question is offensive or otherwise obviously calculated to do no more than unfairly prejudice the witness (or the party who has called that witness) in the eyes of the jury, or where the form of the question is such that it involves unfairness to the witness (which other counsel may not have detected) or is likely, whether because of latent or patent ambiguity or for any other reason, to elicit an answer which would be misleading. Another obvious instance would be where the asking of the question represents a flouting of some earlier ruling on admissibility of evidence of a particular subject matter, particularly where it is embarrassing to counsel for the other party to have to object repeatedly to such questions.

That is not an exhaustive statement of the circumstances in which the judge would be justified in rejecting a question without objection. There may well be others. What is clear is that the circumstances in which a judge should reject a question without objection are obviously limited, and the decision whether or not to intervene must always be taken by the trial judge with due regard to the undesirability of an interruption to the flow of cross-examination and, above all and especially in a jury trial, with regard to the undesirability of interventions which may give the appearance that the judge has descended into the arena and aligned himself with one or other of the combatants.

It is also worth remarking that a judge who (except in the case of an offensive or ambiguous and potentially misleading question) rejects a question in the absence of any objection from counsel runs the risk of falling into error and of excluding evidence which ought properly to have been admitted. The task of a judge conducting any trial is not an easy one. In a very real sense, not only is a judge entitled to expect proper assistance from counsel in carrying out that task, but he or she is also to a degree dependent on such assistance and (not only in the interests of justice but in his or her own interest) a judge should not too readily discount the value of that assistance nor so act as to be deprived of it (12).

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (166 paragraphs)

COTIC -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 252 (4 December 2012)

Parties

Legislation Cited (2)

Cases Cited (2)