Solicitors:
Office of the Director of Public Prosecutions (NSW) (Crown)
Matouk Joyner Lawyers (Accused)
File Number(s): 2015/335208
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Judgment
On the sixth day of the trial and at the end of the Crown case the Crown sought to tender a DVD containing a 000 call made by Youness Elmrabt on 13 November 2015 together with a transcript of that call. Because it was known that objection would be taken to the tender, the tender was made on a voir dire. Mr Elmrabt had given evidence on the second day of the trial, 29 November 2017, had been cross-examined on that day and thereafter excused. The Crown sought to tender the DVD and transcript pursuant to s 108(3)(b) of the Evidence Act 1995 (NSW) and in reliance on s 66A of that Act.
Those sections provide:
66A Exception: contemporaneous statements about a person's health etc
The hearsay rule does not apply to evidence of a previous representation made by a person if the representation was a contemporaneous representation about the person's health, feelings, sensations, intention, knowledge or state of mind.
108 Exception: re-establishing credibility
(1) The credibility rule does not apply to evidence adduced in re-examination of a witness.
(2) (Repealed)
(3) The credibility rule does not apply to evidence of a prior consistent statement of a witness if:
(a) evidence of a prior inconsistent statement of the witness has been admitted, or
(b) it is or will be suggested (either expressly or by implication) that evidence given by the witness has been fabricated or re-constructed (whether deliberately or otherwise) or is the result of a suggestion,
and the court gives leave to adduce the evidence of the prior consistent statement.
The basis of the application was that Mr Elmrabt's credit had been impugned in cross-examination and that the 000 call was a prior consistent statement in circumstances where it was suggested that the witness had fabricated or reconstructed the evidence that he had given.
Mr Littlemore QC on behalf of the accused opposed the tender of the material. The opposition was put on a number of bases. First, Mr Littlemore said that the questions he asked of Mr Elmrabt were properly asked without any suggestion that he had fabricated or reconstructed his evidence. Secondly, he submitted that the existence of the transcript and recording of the 000 call had been concealed by the Crown until after Mr Elmrabt's evidence had been completed and that it would be unfair for the Crown opportunistically to be allowed to rely on the prior consistent statements contained in the DVD recording. Thirdly, Mr Littlemore said that the accused would suffer a very considerable forensic disadvantage because he had cross-examined Mr Elmrabt on the basis that the details of the call were not available. That cross-examination would have been different had the contents of the call been available.
After a short adjournment to consider the arguments put, I indicated that I would not permit the Crown to tender the DVD or the transcript and that I would give my reasons at a later time.
The Crown then sought an adjournment to obtain instructions. Upon resumption the Crown sought that the jury be discharged and, effectively, that the trial not proceed until a later time. I indicated to the Crown that if I were to discharge the jury it would likely come with cost consequences. Mr Littlemore opposed the discharge of the jury but accepted the reality of the situation. I said that I proposed to discharge the jury and that I would give my reasons for doing so at a later time.
These are now my reasons for rejecting the tender of the DVD and transcript, and for discharging the jury.
In his statement made on 13 November 2015 Mr Elmrabt relevantly said this:
21. At 1:54pm I called Triple 0 from my mobile and asked for the Police and I told the operator what had happened. I have checked my phone and know I was was (sic) on the phone to Triple 0 for nine minutes and 51 seconds. While I was on the phone to the Police, another man came from 216 Wangee Road and put the second male on his side. There was heavy bleeding from the second males (sic) chest and blood coming out of his mouth. He wasn't saying anything.
22. While I was on the phone to the Police, the younger female came back. She walked onto the driveway of 212 Wangee Road and was crying and saying, "What did he do?" I said to her "What's the man's name?" She replied, "I don't know." I said, "What's his name?" She then replied, "John." I said, "What's his last name?" She replied, I don't know." I wanted to get this information to tell the Police operator.
His evidence in the witness box was consistent with that.
Mr Elmrabt also gave evidence that, after the fighting between the accused and the deceased stopped on the first occasion, the accused ran back towards Roberts Road:
And while he was running back he was screaming towards the other man that he would come back and he would kill him and that he knows where he lives.
Mr Elmrabt gave evidence of what was said when the man returned:
Q. Do you remember what he was screaming?
A. Yes. He was screaming, "I told you I would come back. I told you I was going to come back and I was going to kill you" and kept on telling him and then he told him, "Come and say sorry like a man" and he kept repeating that and repeating that and told him, "Come, kneel down and say sorry like a man".
In his cross-examination of Mr Elmrabt, Mr Littlemore accused him of being a liar, partly because of his lack of recall of having signed his statement, but also generally. Mr Littlemore put to him (T 77.29-35):
Q. Mr Elmrabt, let me not mince my words. You are a liar aren't you?
…
Q. You have lied in the evidence you have given against my client, haven't you?
and again (T 83.37):
Q. You are not being an honest man, are you, Mr Elmrabt?
At T101.5 Mr Littlemore put this question to Mr Elmrabt:
Q. I put it to you that your evidence that my client ever said anything about killing was false?
Mr Littlemore asked Mr Elmrabt whether he would have been hysterical when he rang 000. The witness asked what "hysterical" meant and Mr Littlemore said:
In a high emotional state of unreality; of overexaggeration; of floridity; carrying on like a pork pie - if that makes it easier?
The following exchange then occurred (T 103.43):
Q. Have you never seen anybody in a hysterical condition?
A. From the definition that you gave earlier, yes, I have.
Q. You have. Weren't you affected by that when you say you spoke to triple 0?
A. I wouldn't say I overexaggerated and reacted in any way that I shouldn't have, no.
Q. Until we see what you said, we can't know that.
CROWN PROSECUTOR: That's a comment, your Honour
HIS HONOUR: Yes, thank you.
Q. Do you recall what you said and the manner in which you said it?
A. The majority of it, yes.
Q. You can recall the manner in which you spoke?
A. Yes.
Q. Was it in a high state of agitation?
A. I would say so.
Finally, for present purposes, Mr Littlemore asked questions of Mr Elmrabt about him and his boss Mr Chami discussing what had happened for the rest of the afternoon.
During the course of Mr Elmrabt's cross-examination Mr Littlemore asked him (T 103.10):
And you say you rang triple 0?
Mr Elmrabt replied "Correct."
Mr Littlemore then called for any transcript or record that the witness made contact with 000. The Crown was not able to produce it at that time but said that she would make further enquiries.
Prior to this time the Crown had served evidence of two 000 calls only. The first was a call from Mrs El-Azzi who had hung up half way through the call. The second was a call back from the operator to the same phone which was answered by Mr Ramadani. The evidence from Detective Senior Constable McCann, the officer in charge of the investigation, was that, a few days after the deceased's death, a request had been made through the iAsk system to obtain all of the 000 calls in respect of the death. The only ones provided were the two that I have mentioned.
On the morning of Monday, 4 December 2017 before the evidence resumed, the Crown Prosecutor answered the call for the DVD of the 000 call made by Mr Elmrabt. She said that it had been served on the previous Friday afternoon at 2:00pm on the accused's solicitor. It was at that point that the Crown indicated that she wished to tender the DVD and transcript in reliance on s 108(3)(b) and s 66A of the Evidence Act.
The DVD was played in court on the voir dire. The majority of what was said was readily understandable although at some places in the recording the transcript assisted in determining what was said. Listening to the DVD was of considerable relevance when considering the cross-examination of Mr Elmrabt about his tone and emotions at the time of the call.
The most relevant part of the call for the application being made by the Crown was the following:
RADIO OPERATOR: Did they have a fight together? Did you see it or just came out when everything was happening?
CALLER: Um earlier on they had a fight and then its settled down a bit and then this man went back into his house then the man came back and started abusing him with a knife telling him he was going to kill him. He jumped over the fence and started with his mum. He was abusing the lady first and he went to the man and stabbed him and then ran away with the knife.
RADIO OPERATOR: Okay and so the man that stabbed him does he live there, also does he or?
CALLER: Yes I'm guessing yes.
RADIO OPERATOR: Okay alright. Between the offender and the victim. The offender came back with the knife and he said he was going to kill him is that right?
CALLER: Yeah. Well he threatened him. And he just jumped over and then he started.
RADIO OPERATOR: He jumped over the fence and stabbed him in the chest.
CALLER: Yeah.
The Crown submitted that the evidence of Mr Elmrabt with respect to the threat he heard the accused make to kill the deceased was a fundamental part of the Crown case. The Crown submitted that the cross-examination of Mr Elmrabt generally, and particularly the question at T101.5, amounted to a suggestion that the evidence had been fabricated.
The Crown also pointed to the cross-examination of Mr Elmrabt concerning his subsequent discussions with Mr Chami, and submitted that the cross-examination impliedly suggested that he had reconstructed his evidence after speaking with Mr Chami. The Crown also pointed to the questions about Mr Elmrabt's emotional state at the time he spoke to the 000 operator and submitted that it was impliedly suggested that his evidence was fabricated by exaggeration or otherwise.
Mr Littlemore submitted that a cross-examiner putting a question asserting that evidence was false amounted only to an assertion that it was untrue, not that it was fabricated or reconstructed. That was because, he submitted, false is the antonym of true. He suggested that the rules of cross-examination made a distinction between putting a proposition as a fact where the cross-examiner had instructions to that effect, and suggesting something to a witness where the suggestion was based on logic or inference. In that way, it was submitted, the matter did not fall within s 108(3)(b) because his questions relevantly fell into the latter category.
Mr Littlemore's principal submission, however, was that at the stage the trial had reached it was unfair to the accused for this evidence now to be introduced. It was no answer to say that the evidence would have been admissible if it had been led when Mr Elmrabt was giving his evidence in chief. That was because the cross-examination of Mr Elmrabt was conducted on the basis of what was then known and had been advised to the defence, namely, that there was no recording of the 000 call made by Mr Elmrabt. Mr Littlemore submitted that the position was analogous to the Crown splitting its case.
Mr Littlemore further submitted that the unfairness to the accused would not be remedied by Mr Elmrabt being recalled and re-cross-examined because of what had already taken place in the cross-examination, and that the accused would lose the benefit of any further cross-examination in the way the matter had developed.
I accept the Crown's submission that the evidence disclosed in the 000 call concerning the threat to kill is highly significant evidence and forms a fundamental part of the Crown case, which is that the accused killed the deceased out of vengeance for what the deceased had earlier done to him. I accept that the cross-examination of Mr Elmrabt in relation to that issue, in particular, was an assertion of fabrication and/or reconstruction.
Although I accept that the word "false" may mean either erroneous, on the one hand, or deliberately or knowingly untrue on the other, the real question is what the jury is likely to conclude that it meant in the question at T101.5. When Mr Littlemore had already suggested to Mr Elmrabt that he was a liar (twice) and not an honest man, in all likelihood the jury would conclude, as do I, that "false" meant knowingly untrue. I consider that Mr Elmrabt was being accused of fabrication with the result that the matter falls within s 108(3)(b).
I further accept that the cross-examination of Mr Elmrabt generally including those parts of it dealing with his discussions with Mr Chami and the way he spoke to the 000 operator, amounted to an attack on Mr Elmrabt's credibility, and impliedly suggested that he had fabricated his evidence. On the information available to Mr Littlemore, the cross-examination was entirely legitimate. However, prima facie, the Crown is entitled to rely on s 108(3)(b) to re-establish Mr Elmrabt's credibility, and the hearsay rule does not prevent that course: ss 66(2) and 66A.
However, s 137 of the Evidence Act applies generally to the admission of evidence in criminal proceedings. Whilst I acknowledge the significant probative value of Mr Elmrabt's evidence, particularly concerning the representation made by the accused of an intention to kill the deceased, I consider that the probative value is outweighed by the danger of unfair prejudice to the accused.
If the evidence was admitted, Mr Elmrabt's credibility is highly likely to be re-established if the jury had doubts about it, but doing so would unfairly prejudice the accused because of the nature of the cross-examination conducted by his counsel attacking Mr Elmrabt. I have no doubt that if the 000 call had been available to Mr Littlemore before that cross-examination was conducted, the cross-examination would not have proceeded in the way that it did and, certainly, it would never have been put to Mr Elmrabt that his evidence that the accused said anything about killing the deceased was false.
I accept Mr Littlemore's submission that the problem could not be corrected by having Mr Elmrabt recalled for further cross-examination. If the evidence was now admitted there is a strong chance that the jury would be less likely to believe the accused's account that Mr Littlemore told the jury in his opening address the accused would give. It is trite to say that the jury would be instructed that they were not to decide the matter by deciding who of, relevantly, Mr Elmrabt and the accused they should believe. However, this evidence of the 000 call in the light of Mr Elmrabt's cross-examination was likely to cast doubt on the accused's account, thereby making it easier for the jury to be satisfied beyond reasonable doubt of essential aspects of Mr Elmrabt's evidence and of the accused's guilt.
I do not accept that the Crown concealed the evidence. The word "conceal" in the context suggests moral turpitude. Mr Littlemore appeared to accept that the Crown had not deliberately brought about the situation but suggested that the Crown was opportunistically taking advantage of what had happened. I do not accept that that is so. The Crown acted quite properly in seeking to rely on the recording and, but for the unfairness to the accused, would have been permitted to do so.
For those reasons, I rejected the tender of the material by the Crown.
The Crown sought the discharge of the jury on the basis that the 000 call was highly probative of the case the Crown seeks to make, namely, that the accused killed the deceased out of vengeance for the earlier attack by the deceased on the accused. Mr Littlemore suggested that the transcript suggested that Mr Elmrabt was back-peddling in relation to what was said by the accused. At first Mr Elmrabt reported him as threatening to kill the deceased but then when pressed by the operator he only used the word "threatened". I took this to be a submission that the evidence was not as probative as the Crown asserted.
I accept the Crown's submission that the evidence of the 000 call is admissible (if led correctly at the proper time) and highly probative. On that basis it is difficult to understand why, when Mr Elmrabt detailed the call in his statement made on the day of the deceased's death to the extent of saying that he checked his phone to see how long the call lasted, the matter of obtaining this recording was not pursued.
I do not consider that the problem came about other than by a lack of diligence on the part of those responsible for preparing the case for trial. However, and accepting on the evidence led that the fault lay with the prosecution authorities (to use an all-embracing term), I take into account that the offence being prosecuted is murder, one of the most serious of all offences. The Crown must be given a second chance to prosecute this charge properly and competently.
I accept that such a result obviously produces unfairness for the accused that cannot be adequately compensated. Some aspects, being legal costs thrown away, can be compensated, but that is for another day. The decision to discharge the jury and to permit the Crown to start over involves a balancing act between the seriousness of the charge and the unfairness of the delay and associated matters. In my opinion, that balancing act must here be resolved in favour of the Crown.
It is for these reasons that I discharged the jury.
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Decision last updated: 26 November 2018