Regina v Cakovski

5 In the course of the investigation of the killing of the deceased, Ms Sekulovska was interviewed on at least three occasions; twice at a police station; once at the scene of the stabbing. She cooperated with police and detailed the events of the night and morning in question, with particular emphasis on what had occurred at the Seven-Eleven store at the corner of Parnell Street and the Boulevard, Strathfield, in Parnell Street itself, and in the aftermath of the stabbing. At no time in her statements and/or in evidence-in-chief did she suggest that the deceased had done anything to her that was improper, and in particular made no suggestion that he had touched her, fondled her, or acted in any sexual way towards her. The only evidence of contact was that, it being a very cold morning, the deceased had put his jacket on her shoulder. This is clear from the following passage: "Q. Whereabouts were you when you smoked the cigarette? A. Just short of half - not really halfway. Q. Sorry, I can't hear you? A. Around the corner from the 7 Eleven, sort of up the street a bit. We were under this - I think there were shops there. There was a sheltered bit. I think it was raining at the time. We went underneath this building. Q. The old man, how did he go about rolling the cigarette? A. I don't understand. What do you mean? Q. Did he roll with his fingers or-- A. Yep, yep. Q. Sorry? A. With his fingers. Q. Do you remember where he got the tobacco from? A. No. Q. How long were you around the corner smoking the cigarette with this man? A. Not more than five minutes. Q. What happened next? A. We were just standing there talking and it was really cold and he put his jacket over me. Q. At what stage did he put his jacket over you? A. What do you mean, like how long we were there for or-- Q. Were you around in front of these premises? A. Yeah, we were standing there and I was shaking. I was really cold and that and he just-- HIS HONOUR : Q. Sorry, "we were standing there"? A. We were standing there and it was really cold and he took his jacket off and put it over me. CROWN PROSECUTOR : Q. Did you notice anything about this man to suggest that he had been drinking? A. Yeah. Q. What was it you noticed about him? A. You could tell when a person has been drinking. Q. What did you notice about this man? A. Just his behaviour, the way he was acting, how he was talking. Q. How he was acting and talking? A. I really can't answer this, I don't know, he was-- Q. Anyway, you thought he had been drinking had you? A. Yep. Q. Whilst you were around the corner smoking a cigarette with this man, did you see Mr Cakovski again? A. Yep. Q. Where did you see him? A. He was walking down the street. Q. From which direction was he walking? A. From the top of the street." 6 Ms Sekulovska completed her evidence and was excused. The accused then gave evidence and in the course of his evidence, in essence, said to the effect in positive form the matters on which Ms Sekulovska had been cross-examined. 7 Part of his evidence was that the knife which had been used in the stabbing had been on the inside of his left leg, inside his sock, from a time prior to 9pm on 19 May 2001 until it fell out of his sock after he had been kicked by the deceased and had fallen to the ground in Parnell Street, Strathfield. 8 The Crown Prosecutor cross-examined the accused on the basis that he had got the knife out of the car in which he had travelled to Strathfield shortly prior to the stabbing, and that he did not have it on his person during the whole of the time during which he said it had been on him in the course of his evidence-in-chief. This was denied by the accused. 9 However, he was then cross-examined on the basis that shortly after 2am on 20 May 2001, he had been apprehended by the police at Stanmore for driving the wrong way down a one-way street, that he then had no identification on him and had given a false name. On checking over the police radio, the person whose name he had given was found to be the subject of a number of police warnings. As a consequence, according to police, before the accused was placed in the police wagon to be taken to Newtown Police Station, he was searched. The search included a search of his legs and ankles and revealed no knife. 10 In the course of a voir dire hearing, counsel for the accused cross-examined the police officer who had made the arrest and made an application for leave to further cross-examine Ms Sekulovska about the arrest and search at Stanmore, it being the case of the accused that no such search had taken place. 11 Pursuant to this request, Ms Sekulovska was recalled. The Crown Prosecutor, by arrangement with counsel for the accused, sought leave to reopen the Crown case so as to allow her to be further cross-examined by counsel for the accused. In the light of the joint application to reopen and in the circumstances, leave was granted and Ms Sekulovska was recalled. 12 Counsel for the accused then cross-examined her not merely about the events of and surrounding the arrest at Stanmore, but also about events in Parnell Street on the morning of the killing. In the course of such cross-examination the witness was resistant to answering questions, and indeed at one stage was unwilling to do so. I directed that she do so. Finally, and after a number of long pauses, she gave evidence in written and/or oral form to the effect that the deceased had his hands all over her, had touched her on private parts of her body on which she did not want him to touch her. She defined such parts as her breasts and buttocks. This definition occurred in Exhibit L. 13 The evidence referred to above clearly presents as unfavourable to the Crown as a party to the proceedings, namely the trial. It gives a sexual connotation to the events in Parnell Street immediately preceeding the stabbing of the deceased, can fairly be regarded as assistive of the case for the accused in the terms defined by Smart J in Regina v Souleyman (1996) 40 NSWLR 727; see also Regina v Adam NSWSC 24 November 1998 Wood CJ at CL (unreported) and so unfavourable within the meaning of s38(1)(a) of the Act. Furthermore in the High Court in Adam v Regina [2001] HCA 57 it was held that to give evidence without "making a genuine attempt" to do so, or to do so accurately, falls within this provision. That was the situation in relation to Ms Sekulovska. 14 The authorities (eg, Regina v Pantoja (No 1) NSWSC Barr J (30 October 1996, unreported); Adam v The Queen (2001) HCA 57 (11 October 2001, unreported) indicate that a flexible approach should be adopted to the application of s38. Furthermore, it is not a bar to its application that the unfavourable aspects of the evidence of the relevant witness form part only of that witness' evidence: Regina v Pantoja NSWCCA 5 November 1998 (unreported), nor is it a bar to the application to the section that the evidence which is unfavourable was not given in chief: Regina v Kingswell NSW CCA (2 September 1998, unreported): Adam v Regina (supra). However, where this occurs it may, depending on the circumstances, be appropriate to allow opposing Counsel (in this case Counsel for the accused), a right to further cross-examine the witness. Such a right was given when leave was granted yesterday. 15 In the light of the foregoing, I am satisfied that Ms Sekulovska has given evidence unfavourable to the Crown, that such evidence although given in cross-examination, is not to be regarded as (and I do not regard it as being) a device to overcome the emergence of unfavourable or adverse evidence in cross-examination, as was the case in Regina v Mansour NSWSC 19 November 1996 per (unreported, Levine J). In the circumstances, subject to a consideration of the discretions which have to be exercised pursuant to sections 135, 137 and 192 of the Act, it would be appropriate to give to the Crown Prosecutor leave to question the witness as though he were cross-examining her and that such further questioning should extend to her credibility, s 38 (3). 16 The second ground relates to material that emerged in cross-examination on the recall of the witness. It concerns a conversation which the witness alleges she had with the principal investigating officer, Detective Sergeant Laycock on Monday 24 June 2002. 17 The cross-examination of the witness was to the effect that she had said things to Sergeant Laycock, suggestedly under some pressure from or in circumstances of inducement by him, and the evidence when adduced was different in material respects from the notes of the conversation which had been made subsequently by Sergeant Laycock. The statement which she is said to have made to Sergeant Laycock was undoubtedly inconsistent with her evidence in cross-examination. Furthermore in my opinion, it was material to matters before the jury. 18 An examination of s 38 reveals that while s 38 (1) (b) is limited in its ambit to evidence that is given in the course of "examination in-chief", no such limitation is to be found in s 38(1)(a) nor in section 38(1)(c). Indeed, the inclusion in s 38(1)(c) of the words "at any time" may be apt to cover a statement made even after the witness has completed her evidence. 19 Having regard to the authorities which indicate that a flexible approach should be made to s 38, I am of the opinion that s 38(1)(c) has application to the statement made by Ms Sekulovska to Sergeant Laycock on Monday 24 June 2002 and that this provides an additional reason for the Crown to have leave under s 38 in respect of Miss Sekulovska. 20 It is necessary now to consider the application of the discretions provided for in the sections to which I have already adverted. Logically, the first of these is s 192. That section provides: "(1) If, because of this Act, the Court may give any leave, permission, or direction, the leave, permission or direction may be given on such terms as the Court thinks fit. (2) Without limiting the matters that the court may take into account in deciding whether to give the leave, permission or direction, it is to take into account: (a) the extent to which to do so would be likely to add unduly to or to shorten the length of the hearing; and (b) the extent to which to do so would be unfair to a party or to a witness, and; (c) the importance of the evidence in relation to which the leave, permission or direction is sought; and (d) the nature of the proceeding; and (e) the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence." 21 The subsections that are material to the present matter are s 192(2)(a), (b), (c) and (d). In relation to s 192(2)(a), it was clear at the time of granting the leave (and that had been borne out at least in the hearing to date), that the granting of such leave would not be likely to add unduly to the length of the hearing. 22 In relation to s 192(2)(b), I do not consider that, having regard to the circumstances in which the issue emerged and the circumstance in which the application arose, it would be unfair to either the accused or to the witness to allow such cross-examination. On the other hand, it would in my opinion be unfair to the Crown, as representative of the community, to refuse the leave. 23 In so far as s 192(2)(c) and (d) are concerned, I have already indicated that the evidence sought to be adduced is relevant to matters before the jury. The case before the Court is a murder trial. A man has been killed. A young man is on trial for such murder. It is appropriate that the jury be fully apprised of all relevant material properly admissible in order for them to come to a just and proper verdict. 24 For these reasons I am of the opinion that the criteria provided for in s 192 favour the Court granting the leave to which I have referred. 25 In this regard I point out that the compound verb used in s 192 (2) is "to take into account". That mandates a consideration of each of the matters in s 192 (2) (Regina v Nguyen; Regina v Hoang [2002] NSWSC 60, 12 February 2002, unreported; Regina v Nguyen [2002] NSWSC 1254; Director of Public Prosecutions (NSW) v Sinton [2000] NSWSC 473, unreported at 12-19). I have done that. However, that section is expressed in non-limiting terms ("without limiting the matters that the Court may take into account"). There are, in my opinion, no additional matters that should be taken into account or need to be taken into account in the present matter in relation to the exercise of any discretion under s 192 and none has been advanced by counsel for either of the parties. 26 There is a general discretion provided for in s 135 of the Act which empowers, but does not require, the Court to refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to a party or cause or result in undue waste of time (s 135 (a), (c)). 27 In so far as a waste of time is concerned, I have already dealt with the question of time in considering the exercise of the discretion pursuant to s 192. My reasons apply equally to the consideration of the matter referred to in s 135 (c). I have already considered the question of prejudice. Far from the matter being prejudicial at all, and certainly not unfairly prejudicial to the accused, it would in my opinion be unfairly prejudicial to the Crown not to allow the evidence to be admitted, particularly as in my opinion its probative value in relation to the credibility of at least the witness Sekulovska and in relation to the events of the night of 20 May 2001 is high. For those reasons I do not think that s 135 is a proper basis on which to exclude the evidence. 28 Section 137 of the Act applies only to criminal proceedings. Under that section the Court is mandated to refuse to admit evidence adduced by the Prosecutor "if its probative value is outweighed by the danger of unfair prejudice to the defendant." I have already considered the application of a like provision in relation to s 135 and, for the reasons expressed in relation to that section, I am of the opinion that s 137 does not mandate the rejection of the evidence. 29 The foregoing are the reasons why leave was given yesterday to re-open and to further cross-examine. **********

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