The Queen v Rapovski

12 On 1 April 2015, he was granted an undertaking by the Director of Public Prosecutions ('DPP') not to use his evidence at this trial against him.[6]

13 On 23 April 2015, when called to give evidence at trial Sazdanovski was unco-operative. When asked questions about his interactions with Tepelis and Talevski on 1 February 2014, whether he lived with the accused and whether he knew Nicolaidis, he responded to the effect that he could not remember.[7] When asked whether there was a medical reason why he could not remember certain things, Sazdanovski responded '[w]ell I told you before that I did have a fight in gaol and I told you why. So maybe that's why.'[8]

14 At the time, Sazdanovski was serving a sentence for an unrelated matter and was to be released in two days. In the absence of the witness, Mr Gibson informed me that Sazdanovski said he was assaulted in prison, as a result of prisoners becoming aware that he was a prosecution witness in this trial.

15 Initially the prosecution sought to have Sazdanovski's evidence stood down until the following Monday. It was thought that by then Sazdanovski would be removed from the intimidation, suspected to be at the root of his 'memory loss'. But on Mr Dane QC's request, and with the prosecutor in agreement, I ordered a voir dire to ascertain whether the witness had been intimidated and whether that intimidation would be lifted upon his release from prison.[9] On the voir dire, Sazdanovski confirmed that he had been assaulted, but maintained that he was unable to give evidence due to memory loss sustained as a result of the assault, not intimidation. He flatly denied that he would be in a better position to give evidence once released from prison.[10]

16 In cross-examination on the voir dire, Mr Dane QC questioned the witness on the cause of his memory loss and also on the identity of the shooter. In doing so, Mr Dane QC elicited responses from Sazdanovski to the effect that he could not recall who the shooter was and that, if it was put to him before the jury that he was the shooter, he would respond: 'I don't remember'.[11]

17 Following the voir dire, the prosecution applied under s 38 of the Evidence Act to question Sazdanovski as though cross-examining him.

18 Section 38 of the Evidence Act relevantly provides:

(1) A party who called a witness may, with the leave of the court, question the witness, as though the party were cross-examining the witness, about -

(a) evidence given by the witness that is unfavourable to the party; or

(b) a matter of which the witness may reasonably be supposed to have knowledge and about which it appears to the court the witness is not, in examination in chief, making a genuine attempt to give evidence; or

(c) whether the witness has, at any time, made a prior inconsistent statement.

(3) The party questioning the witness under this section may, with the leave of the court, question the witness about matters relevant only to the witness's credibility.

(6) Without limiting the matters that the court may take into account in determining whether to give leave or a direction under this section, it is to take into account -

(a) whether the party gave notice at the earliest opportunity of the party's intention to seek leave; and

(b) the matters on which, and the extent to which, the witness has been, or is likely to be, questioned by another party.

19 In determining whether to grant leave, I must also have regard to the following factors listed in s 192(2):

(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

(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.

20 I must also have regard to the discretions and mandatory exclusions contained in Part 3.11 of the Evidence Act.

21 Specifically, Mr Gibson sought leave to put to the witness aspects of his record of interview, statement and committal evidence. Mr Gibson relied on all three matters listed in s 38(1) as enlivening the application. Regarding s 38(1)(a), he submitted that Sazdanovski's evidence was unfavourable in the sense that he responded to questions regarding the events of 1 February 2014 with the answer 'I don't remember'. He said that s 38(1)(b) applied as Sazdanovski was not making a genuine attempt to give evidence regarding matters involving the accused or the circumstances of the assault which Sazdanovski claimed led to the memory loss. Mr Gibson also submitted that the answers 'I don't remember' were plainly inconsistent with the detailed and relatively precise evidence Sazdanovski gave during the record of interview, his statement and at committal, and that s 38(1)(c) therefore also applied.

22 Mr Gibson also sought leave under s 38(3) to cross-examine the witness on matters which were relevant only to the witness's credibility.[12]

23 Regarding s 38(6)(a), no issue was taken with the timing of the oral notice of the prosecution's intention to seek leave under s 38.[13] And as to s 38(6)(b), which requires me to consider the extent to which the witness will be cross-examined by another party, the prosecution submitted that, as the defence would still have the opportunity to cross-examine the witness, the defence could not be said to have suffered prejudice, and so considerations under s 38(6)(b) should not adversely impact the prosecution's application.[14]

24 As to the matters listed in s 192(2), the prosecutor submitted that if the application were granted, this would not unduly lengthen proceedings, nor would it cause unfairness to any party or to the witness. Mr Gibson submitted that the evidence sought to be elicited was of extreme importance to the prosecution case and that without it, there would be no cogent evidence identifying the accused specifically (as compared to the 'driver') as the shooter. Finally he submitted that there was no utility in adjourning the hearing, rather than granting leave.

25 Regarding the discretions and mandatory exclusions in Part 3.11 of the Evidence Act, Mr Gibson submitted that the probative value of the three documents containing the prior statements was very high, as Sazdanovski's evidence at all three stages had remained consistent. He submitted that there was no unfair prejudice.

26 Mr Dane QC opposed the application solely on the ground of unfair prejudice. He submitted that, should the witness maintain that he 'cannot remember', the defence would be unable to effectively cross-examine the witness if the record of interview, statement and committal evidence had already been put to the witness by Mr Gibson.[15] He also commented that the fact that Sazdanovski had been given an undertaking was a matter to 'put in the mix'.[16]

27 Adopting the broad view of the term 'unfavourable'[17] - pursuant to which unfavourable means 'not favourable', as opposed to 'adverse' - Sazdanovski's evidence at trial was unfavourable under s 38(1)(a).

28 Section 38(1)(b) also applies. Based on the record of interview, statement and committal evidence, the matters which formed the subject of Mr Gibson's examination in chief are matters of which Sazdanovski may 'reasonably be supposed to have knowledge'. Sazdanovski's assertion that he does not recall due to head injuries is not credible in circumstances where he has selectively responded to questions regarding matters which are further removed from the accused and the events of 1 February 2014. Also, Sazdanovski says he was targeted as he was giving evidence in this trial - it is unlikely that injuries sustained from an assault have adversely affected his memory such that he is effectively precluded from giving evidence. The far more likely scenario is that Sazdanovski is labouring under the influence of intimidation following the assault. In these circumstances, it appears that he is not making a genuine attempt to give evidence.

29 Also, the detailed accounts captured in Sazdanovski's record of interview, statement and committal transcripts (regarding the matters of which he now claims to have no memory), in my view, amount to prior inconsistent statements under s 38(1)(c).

30 The question remains whether leave should be granted. To this end, I must consider s38(6), s 192(2) and the discretions and mandatory exclusions in Part 3.11 of the Evidence Act.

31 Regarding s 38(6), there is no issue about the timing of the application under s 38: it was made at the first reasonable opportunity and Mr Dane QC did not suggest otherwise. If leave under s 38 is refused, Mr Dane QC is unlikely to test in cross-examination the witness's claim that he can't remember, as it suits the defence case.

32 Turning to the considerations under s 192(2) and Part 3.11, in respect of which there is some overlap, Sazdanovski was an eye witness to the shooting and was involved in the events which led up to the confrontation. He is the only witness who can give direct evidence that the accused was the shooter. The best that can be drawn from the other witnesses is that the driver was the shooter.

33 The fact that Sazdanovski has been given an undertaking may impact on his credibility but, in assessing the probative value of the prior statements, one is to assume credibility but not reliability.[18] There may be reliability issues with Sazdanovski's evidence which diminish its probative value, in particular the fact that he was on ice at the time[19] but, given the consistency of his prior statements with the evidence of Kupresak and Krasniqi which suggests that the driver was the shooter, and the evidence about the injury to Nicolaidis which gave the accused a motive to shoot Tepelis, I am satisfied that his evidence is sufficiently reliable to be of considerable importance and probative value.

34 The nature of the proceedings - being a criminal prosecution for attempted murder, where the complainant has sustained permanent and severe injuries - also militates in favour of granting leave under s 38.

35 As regards unfair prejudice to the accused, the only argument advanced by the defence was that its ability to effectively cross-examine the witness would be hindered if he maintains that he can't remember and the prosecutor gets to cross-examine into evidence his prior statements but, as intimated at [16] above, Mr Dane QC was able to cross-examine the witness to considerable effect on the voir dire, eliciting answers that can in all likelihood be used to equal effect in cross-examination of the witness before the jury.

36 The witness has given a detailed record of interview, police statement and sworn evidence at the committal. He has been given an undertaking by the DPP. I do not consider it unfair to him that his claims of memory loss should be tested before the jury by reference to his prior statements.

37 Having regard to the importance of Sazdanovski's evidence, I do not consider that granting leave under s 38 would unduly lengthen proceedings.

38 Accordingly, I granted leave to the prosecution to effectively cross-examine Sazdanovski under ss 38(1)(a), (b) and (c) and also under s 38(3) regarding matters which are relevant only to the witness's credibility.

[1] See Exhibit 9, a spreadsheet of the relevant call charge records, containing abusive and threatening text messages between Sazdanovski and Tepelis.

[2] Sazdanovski said Nicolaidis was the accused's girlfriend (Trial transcript 249.20-.21) whereas Nicolaidis said she and the accused were friends as at 1 February 2014 (Trial transcript 442.23).

[10] Trial transcript 164.17-.18, 165.1 and .19.

[17] Pursuant to the narrow interpretation of the term 'unfavourable', the witness's evidence must detract from the case of the party who called them (Hadgkiss v Construction, Forestry, Mining and Energy Union [2006] FCA 941, [9]), and it is insufficient for the evidence to be neutral. However, pursuant to the broad view, it is sufficient if the witness's evidence is 'not favourable' - this is the preferred interpretation (DPP v McRae [2010] VSC 114, [24]).

[18] Dupas [2012] VSCA 328; 218 A Crim R 507, see especially [63].

[19] At committal Sazdanovski gave evidence that as at 1 February 2014 he was using around 8 mg of 'ice' per week (Depositions 159-160).