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[2012] NSWSC 211
Supreme Court of NSW
2011-11-23
Johnson J
Original judgment source is linked above.
Judgment (on application by Accused for warnings under s.165 Evidence Act 1995 concerning the evidence of Mr Plavsic) 1JOHNSON J: At the conclusion of the evidence and before closing addresses, Mr Brady, counsel for the Accused, applied for a warning to be given to the jury under s.165(1)(d) Evidence Act 1995 in the course of the summing up, concerning the evidence of Mr llija Plavsic (MFI15; T413-417). 2It was submitted that the evidence of Mr Plavsic may be unreliable as it was evidence given in a criminal proceeding by a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceedings: s.165(1)(d). 3Further, it was submitted that an unreliable evidence warning under s. 165(1) should be given concerning the evidence of Mr Plavsic having regard to his state of intoxication. 4On 5 December 2011, I indicated that I was not then persuaded that a warning under s.165(1)(d) ought be given or that a s.165 warning ought be given on the issue of intoxication (T423-424). This judgment contains my reasons for reaching those conclusions.
The Evidence of Mr Plavsic in the Trial 5The Accused was indicted for the murder of Tony Darkovski on 12 November 2009. It was the Crown case that, on that day, the Accused, the deceased and Mr Plavsic were present in a house at Canley Heights. The deceased was stabbed to death that day. 6Mr Plavsic gave evidence that it was the Accused who stabbed the deceased. 7The Accused gave evidence at the trial that there had been aggression and provocative words and conduct on the part of the deceased directed towards him with the deceased, at one point, strangling the Accused with the result that he (the Accused) lost consciousness. It was the evidence of the Accused that, although he had not observed how the deceased came to be stabbed, it was not the Accused who had done it. 8Mr Brady opened to the jury after the Crown opening address. He commenced with the following words (T36.13): "BRADY: This is a case about three men. One man, as you have heard, is deceased; one man, as you know, is sitting in the dock (indicated); and one man, who we say is to blame for both of those things, and that man is llija Plavsic, the principal Crown witness." 9Counsel for the Accused conducted the trial upon the basis that there was at least a reasonable possibility that it was Mr Plavsic, and not the Accused, who stabbed the deceased, so that the Accused should be acquitted. 10Against that background, Mr Brady sought a warning under s.165(1)(d) Evidence Act 1995 with respect to the evidence of Mr Plavsic. He submitted that Mr Plavsic was "a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding" so as to fall within the provision and to require an unreliability warning to be given under s. 165(2) of the Act. 11Mr Brady referred to the decision in R v Taranto; R v Freeman [1999] NSWCCA 396 at [38]-[42] in support of the application. 12Mr Brady submitted that a s.165 warning should be given in this case, so that the jury would be informed of the experience of the courts that a person in the position of Mr Plavsic, may have reason to lie and to shift the blame for his crime to the Accused (T415-416). 13The Crown opposed the giving of such a warning in this case. It was submitted that the application was redundant because of the way the defence had been conducted so that, should the jury accept that there was a reasonable possibility that it was Mr Plavsic who had stabbed the deceased, then the Accused must be acquitted (T414). The Crown submitted that a s.165 warning would be, at the least, confusing and, at worst, nonsensical given the way that the trial had been conducted for the Accused (T414.19). 14The Crown submitted that the circumstances of this case did not fall within the terms of s.165(1)(d) so as to require any warning from the Court. To give such a warning in this case, the Crown submitted, would operate in an unduly favourable way to the Accused (T416-417).
My Reasons for Declining the s.165(1)(d) Application 15Section 165 Evidence Act 1995 does not deal with unreliability of witnesses generally. Rather, the need for a warning typically arises either because the jury needs to be acquainted with the accumulated experience of courts dealing with certain types of evidence, or because there is a danger that the jury may over estimate the probative value of certain evidence: R v Baartman [2000] NSWCCA 298 at [62]; R v Stewart [2001] NSWCCA 260; 52 NSWLR 301 at 308 [38], 321-323 [95]-[101]; GAR v R (No. 2) [2010] NSWCCA 164 at [97]. 16Whether the evidence in respect of which a request for a warning is made comes within one of the designated categories, will be a matter for the trial Judge to determine: R v Stewart at 320-321 [95]. 17Section 165(1) provides that the section applies to "evidence of a kind that may be unreliable" , including (in s.165(1)(d)) "evidence given in a criminal proceeding by a witness, being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding" . 18The case mounted by counsel for the Accused at trial was that it must have been Mr Plavsic who killed the deceased, and not the Accused. This is not a case where Mr Plavsic was challenged upon the basis that he was an accomplice. The principal issue in the trial was whether the jury was satisfied beyond reasonable doubt that it was the Accused who stabbed the deceased or whether it was a reasonable possibility that it was Mr Plavsic who did so, in which case, the Accused was entitled to be acquitted. 19The matters identified in the draft direction (MFI15) as being capable of implicating Mr Plavsic were, in my view, speculative. Further, no plausible motive had been proposed as to why Mr Plavsic would wish to stab his work colleague. Although, it was open to counsel for the Accused to submit that the jury should have a reasonable doubt as to the guilt of the Accused by contending that there was a reasonable possibility that Mr Plavsic was the assailant, the question for the Court to determine for the purpose of s.165(1)(d) was a different one. The question for the Court was whether the threshold test for a s.165(1)(d) warning had been made out. I was not satisfied that it had been. 20Further, in the context of this trial, it did not seem to me that the evidence of Mr Plavsic was in a class where the jury might be misled in making an assessment of whether to accept it or in evaluating its worth. There was no special knowledge or experience of that kind of evidence which the Court had and which the jury may not possess, so as to require a warning from the Court. The stark issue from the commencement of the trial was the defence argument that it was Mr Plavsic, and not the Accused, who stabbed the deceased. The credibility and reliability of Mr Plavsic were central issues, and the jury did not require an unreliability warning from the Court. The issue was plain for the jury to see from the outset of the trial. 21Counsel for the Accused conducted the trial upon the basis that it was Mr Plavsic who stabbed the deceased and thus he (Mr Plavsic) was, by asserting that the Accused was the killer, attempting to shift blame from himself to the Accused. That this was the primary issue for the jury to consider in the trial was self-evident. It was not a scenario which called for a judicial warning under s.165. 22I accepted the Crown submission that a s.165 warning would be superfluous in this case, and would only introduce unnecessary complication and potential confusion for the jury. 23The proposed written direction (MFI15) sought a direction from the Court to the jury that "you might consider that Mr Plavsic is reasonably supposed to have been criminally concerned in the events giving rise to the proceeding". If that was so, then the Accused was entitled to be acquitted. 24However, even if the present application did fall within s.165(1)(d), the requirement to give a warning under s. 165(2) is not absolute. A trial Judge need not comply with s. 165(2) if there are good reasons for doing so. Where a Judge is required to make a determination that a witness comes within the expression used in s.165(1)(d), but concludes either that the test in the section is not satisfied or that there are good reasons for not giving a warning (s. 165(3)), the Judge should give reasons: Kutschera v R [2010] NSWCCA 150 at [95]ff. 25In this case, even if I had been persuaded that there was a foundation for a warning to be given under s.165(1)(d), I was of the view that there were good reasons for not giving such a warning in this case. The giving of the warning in this case would have added a judicial warning to what was already clear to the jury. There was a real prospect for confusion and imbalance in the summing up, in the context of this trial. Further, the giving of the warning proposed in MFI15 would have elevated a submission based on a tenuous foundation to a formal judicial warning which would have the flavour of the trial Judge repeating and endorsing the defence submissions. In the circumstances of this case, this would have caused imbalance in the summing up and operated against a fair trial for the Crown and the Accused. 26It was for these reasons that I declined to give the s.165(1)(d) warning concerning the evidence of Mr Plavsic.
The Intoxication Issue 27With respect to the intoxication issue, it seemed to me that the effect of alcohol upon a person was not an issue which required a special warning from the Court, upon the basis that the issue may not otherwise be within the knowledge or experience of members of the community, and thus the jury (T424). 28The fact that alcohol, when consumed in large quantities, will affect perception and recollection, and the reliability of a person's account of events, is common knowledge. I did not consider that any warning in this regard, based upon the experience of the Courts, was necessary: R v Stewart at 323 [105]. 29Mr Plavsic acknowledged that he had consumed a significant quantity of alcohol. The jury was given directions during the course of the summing up concerning an assessment of the reliability of the evidence of Mr Plavsic in light of, amongst other things, his consumption of alcohol (summing up, paragraph 47).
Conclusion 30It was for these reasons that I declined to give the warnings sought on behalf of the Accused.
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