New South Wales Supreme Court CITATION : Regina v Suteski [No 4] [2002] NSWSC 218 CURRENT JURISDICTION: Criminal Division FILE NUMBER(S) : SC 70053/01 27/2/02 - 28/2/02 HEARING DATE(S) : 1/3/02 4/3/02 - 8/3/02 11/3/02 - 12/2/02 JUDGMENT DATE : 12 March 2002 PARTIES : Regina Sneza Suteski JUDGMENT OF : Kirby J M Tedeschi QC/Ms N Adams (Crown) COUNSEL : P Byrne SC/R Nicol (Accused) A Haesler (Witness "B") SOLICITORS : S E O'Connor (Crown) R J Walsh, Murphy & Roskov (Accused) CATCHWORDS : Criminal Law & Procedure - Evidence - Refusal of witness to give evidence - Witness "unavailable to give evidence" for purposes s65(1) admission of hearsay - Discretion to exclude s137 LEGISLATION CITED : Evidence Act 1995 Crimes Act 1900 R v Souleyman (unreported, Smart J, 23.5.96) Lee v The Queen (1998) 195 CLR 594 CASES CITED : R v Blick [2000] NSWCCA 61 R v Lisoff [1999] NSWCCA 364 R v Serratore (1999) 48 NSWLR 101 DECISION : Order para 59 Revised IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION KIRBY J Tuesday 12 March 2002 70053/01 - REGINA v SNEZA SUTESKI JUDGMENT [No 4] - Re admissibility of tender of ERISP of Witness "B" 1 KIRBY J: Application is made by the Crown under s65(2) of the Evidence Act 1995 ("the Act") to tender a video recorded interview of a person said not to be available to give evidence. The person I shall refer to as Witness "B", is alleged by the Crown to have been an accomplice of the accused, Ms Sneza Suteski. 2 The accused has been charged with the murder of Mr Richard Peich. Mr Peich died on 20 December 1999. During 1999 Ms Suteski worked in the accounts department of a car dealer, Newman's of Kogarah. Mr Peich was the accountant of that company, and Ms Suteski's immediate superior. Ms Suteski defrauded her employer by diverting cash from the company's bank account to her own bank account, or the accounts of persons sympathetic to her. The Crown alleges that to better accomplish or complete such fraud she needed Mr Peich away from work. Ms Suteski, therefore, according to the Crown, approached Witness B, asking that he assault Mr Peich or recruit someone to do so. Witness B, in his turn, arranged for a friend (here referred to as Witness "W"), to undertake that task. On 20 December 1999, Witness W repeatedly stabbed Mr Peich. Mr Peich died almost at once. 3 Witness W and Witness B and Ms Suteski were arrested on 25 January 2000. Witness B's girlfriend, Ms Kaycee Salem, was also arrested. All were interviewed by the police. The present application concerns the interview given by Witness B on that occasion. 4 On 1 December 2000, Witness B pleaded guilty to an alternative charge of procuring Witness W to maliciously wound Richard Peich. In the proceedings on sentence, Witness B did not offer to assist the Crown. He was sentenced to a term of imprisonment of ten years, with a non parole period of seven years. 5 Witness W was charged with murder. He also pleaded guilty. However, he offered to assist the Crown, undertaking to give evidence against Ms Suteski. He was sentenced to twenty years imprisonment, with a non parole period of fifteen years. The term was significantly reduced by reason of his offer of assistance. 6 Ms Kaycee Salem was also charged, although with a lesser offence. She likewise offered to give assistance. The charges against her were ultimately withdrawn, and she was provided with an Indemnity signed by the Attorney General. The Crown Case at Trial 7 The issue in this trial is really quite narrow. There is no issue that Ms Suteski defrauded her employer. The indictment against the accused included nine counts of having obtained money by deception. Ms Suteski pleaded guilty to each count. She also acknowledged her guilt in respect of sixty-eight additional offences, which were included on a Form 1 signed by her. The amount involved in the fraud is approximately $285,000. She began taking money in August 1999. Ms Suteski continued to do so after the murder and until 19 January 2000, that is, a matter of days before her arrest. 8 There appears to be no substantial issue concerning whether Ms Suteski sought to arrange some form of physical assault upon Mr Peich. Ms Suteski's former boyfriend, Mr Bradley Barnes, gave the following evidence of a conversation with the accused: (T313) "... I asked her why she couldn't come home, why she was in trouble for? She briefly explained to me that some guys, she had some guys to rough up a guy from her work and they stuffed up and killed him. And that's pretty much it, about the phone call. Q. Did she use that term, 'rough up'? A. Yes." 9 Mr Barnes was not cross examined to suggest that account was false or inaccurate. 10 When Ms Suteski was interviewed, she said this: "Q51 Is there anything else you wish to say about that? A. I, I would like to talk at a further stage when I can speak to my solicitor. But again, I did not kill Richard Peich. Things went out of hand and I, I don't know what happened, so, but I did not kill him." 11 Ms Kaycee Salem and Witness W have each given evidence. They have recounted conversations with Ms Suteski. Witness W attributed to Ms Suteski the following words: (T48) "A. Well I asked, 'How do you want this guy hurt?', and she just said, 'Bash him. Stab him. Kill him. I don't give a fuck what you do to him, as long as he doesn't show up for work.'" 12 It was suggested in cross examination that this evidence was false. Apart from that suggestion, there has been a general attack upon the reliability of both witnesses. The unavailability of Witness B 13 Witness B is in gaol serving the sentence imposed in June 2001. He refused to give evidence at committal. When called on the voir dire, Witness B gave the following answers to questions from me: (T166) "Q. You understand that this is a trial concerning Sneza Suteski? A. Yeah correct. Q. And that you're going to be asked questions in relation to the events preceding 20 December 1999? A. I don't wish to say anything about this matter. Q. Why is that? A. No comment. I just, I don't want nothing to do with this. I don't want to say anything about this court case. Q. Why is that? A. No comment. Q. You see, you have already been dealt with so you have nothing to fear about it, have you? A. I don't have anything to fear. I just don't have nothing to say about this matter." 14 Witness B's attention was drawn to the Court's power to direct him to answer questions, and to punish for contempt, should he refuse to do so. That notwithstanding, Witness B maintained his refusal. He said this: (T167) "Q. Knowing that, you say that you will not answer questions relating to this case? A. I will not answer any questions regarding this matter. I will give you my name, that's it. Apart from that, that's it." 15 During the voir dire, the solicitor for Witness B in the sentencing proceedings was present in court. Through that solicitor, arrangements were made for Witness B to have counsel's advice. Mr Haesler of counsel was retained. On the third day of the trial, Witness B was again brought to court. On this occasion he refused to take the oath. Mr Haesler, on his behalf, made the following statement in the presence of the jury: (T204) "For reasons unconnected with this case, (Witness B) refused to be sworn or to give evidence in this trial." 16 Witness B was then stood down to enable the Crown to consider its position. The Crown has sought to tender the video interview with Witness B upon the basis that he is, within the meaning of the Act, "unavailable to give evidence", creating the right to tender an account of his evidence by other means (s65). 17 The Act, in the dictionary, defines the expression, "unavailability of persons" (s4(1)). There are a number of categories. They include persons who are dead, not competent, or who are missing. They also include the following: "s4(1) For the purposes of this Act, a person is taken not to be available to give evidence about a fact if: (f) all reasonable steps have been taken, by the party seeking to prove the person is not available, to compel the person to give the evidence, but without success." 18 Mr Byrne SC acknowledged that the Crown had taken all reasonable steps to compel Witness B to give evidence. That acknowledgment simply recognised that the sanction of contempt, in the context of Witness B, is unlikely to change his mind. 19 I accept, therefore, that Witness B is, for the purposes of the act, unavailable to give evidence. The exception provided by s65 20 Section 65, relevantly, is in these terms: "s65(1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact. (2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation was: (a) made under a duty to make that representation or to make representations of that kind; or (b) made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication; or (c) made in circumstances that make it highly probable that the representation is reliable; or (d) against the interests of the person who made it at the time it was made." 21 The Crown relied s65(2)(c) and (d), although most of its submissions were directed to sub-section (d). Aspects of Witness B's account may be regarded as highly probable (the introductory words and inconsequential information provided). However, his position, as an accomplice, makes it difficult to have that degree of confidence in his account that it could be characterised as "highly reliable". I will approach the matter upon the basis of s65(2)(d). In respect of that sub-section, the Act makes the following further provision: "65(7) Without limiting paragraph (2)(d), a representation is taken for the purposes of that paragraph to be against the interests of the person who made it if it tends: (b) to show that the person has committed an offence for which the person has not been convicted;" 22 Witness B's interview took place on the date of his arrest. He had not yet been convicted. 23 Counsel for Ms Suteski drew attention to the structure of s65. Witness B would give "evidence" by means of the video. Counsel pointed to s65(3), (4) and (5), which dealt with an analogous situation, namely the use that can be made of evidence previously given by a person who becomes unavailable. The Act, in that circumstance, incorporated safeguards to protect the accused. Such evidence can only be given where the party against whom it is tendered has cross examined the unavailable witness, or has had a reasonable opportunity of doing so (s65(3)). Section 65(8), it was submitted, is a further indication of a legislative policy of protecting the rights of the accused. 24 The submission appeared to be that s65(2) should be construed by reference to the philosophy which is apparent in other sub-sections. However, s65(3), (4) and (5) deal with a particular situation, previously dealt with by s409 Crimes Act, 1900. Section 65(2) must be construed on its own terms, by reference to the words which appear in that sub-section. 25 It was further submitted that the statements by Witness B cannot be characterised as being against his interests. The statement, "Ms Suteski gave me instructions to arrange the bashing of Richard Peich" was not, it was submitted, against the interests of Witness B, so far as it identifies Mr Suteski. Only that part of the statement in which he acknowledged an instruction from someone (unnamed) came within s65(2)(d). 26 Such an approach is, I believe, too narrow. Statements by Witness B, tending to implicate him in a joint criminal enterprise with Ms Suteski, may be characterised as against his interest. Having said that, each statement in the interview, each representation, must be examined in order to determine whether it may be regarded as a statement against interest (ss(2)(d)). 27 Counsel for the accused also drew attention to Witness B's position as an accomplice. Whilst his statements may be incriminating (and to that extent, against his interests), he, nonetheless, may well be serving his own interests, as s165(1)(d) of the Act recognises. In this case, Witness B's position was complicated by his girlfriend having been arrested. It is likely that he also had her interests in mind as he answered questions, endeavouring to insulate her from prosecution. In these circumstances, it was submitted, the statements by Witness B cannot be characterised as "against interest". 28 Whilst unquestionably Witness B may have had mixed motives when providing the answers he gave, those answers were, with some exceptions, objectively against his interests at the time they were made. The rule against second hand hearsay 29 It was further submitted that the proposed evidence would offend the hearsay rule, in that its presentation would inevitably involve second hand hearsay. The Act, of course, permits only first hand hearsay (s62). Counsel for Ms Suteski drew attention to the opening words of s65(2), which for convenience I repeat: "s65(2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation was: ..." 30 It was said that statements by Witness B in the interview, where he attributed words and actions to Ms Suteski, or Witness W, or others, were representations of fact. Section 65(2) required that someone who had seen, heard, or otherwise perceived the representation being made, should give evidence of the representation (cf R v Souleyman (unreported, Smart J, 23.5.96)). That process involves a person (in this case the police officer) who was present at the interview, repeating the representation for the purposes of proving the truth of the representation (Lee v The Queen (1998) 195 CLR 594). That, it was submitted, would be second hand hearsay, and therefore offend s62. 31 However, I believe the submission misstates the hearsay rule. Witness B, when he spoke the words in the interview, was describing events in which he was a participant, or which he witnessed. It was a direct account, not involving hearsay. Where he related what was said to him, his statements may or may not have been hearsay. In circumstances where Witness B repeated to the police assertions of fact by someone else, and where the only relevance of such evidence was the facts asserted, it is hearsay. Its repetition by the police officer, when giving evidence of the interview, would involve second hand hearsay. It must therefore be excluded. 32 Where, however, Witness B was relating to the police the words of Ms Suteski in respect of the request said to have been made by her, such words are not hearsay. Rather, they are a description of what occurred. They are what used to be described as "verbal acts" or "operative words". Their repetition by the police when giving evidence of the interview (through the tender of tapes) does not offend the rule in respect of first hand hearsay. 33 Accordingly, I do not believe that the police officer who participated in the interview is prevented, by s62, from giving evidence of previous representations made by Witness B in the course of the interview. Particular statements may offend the rule against first hand hearsay, as in the illustration given above. The material should be examined in order to exclude such statements. 34 There was debate as to the form in which the evidence, if admitted, should be given. Mr Byrne SC, counsel for the accused, contended that the only permissible way in which it may be given, having regard to the opening words of s65(2), is by a police officer reading onto the record what was said. That, he submitted, may be inconvenient. However, it was required by the Act. I do not accept that submission. Section 65(2) identifies the qualifications of the person who may give evidence. He or she must be a person who "saw, heard or otherwise perceived the representation being made". However, the sub-section does not specify the form in which such evidence may be given by such a person. I believe, if admitted, the evidence should be given in the usual way, by playing the video, excising any portion that may be objectionable. 35 I have seen the interview for the purposes of determining this application. Witness B is particularly hard to understand, first, because he has an accent, and secondly, because of his manner of speech. A transcript (amended to reflect the video) should be made available to the jury as an aide memoir, if the material is admitted. 36 It is my view that, subject to issues of discretion, which I will now address, the evidence is admissible under s65(2). Exclusion of the evidence 37 Section 135 of the Act provides, relevantly, that the Court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence may be unfairly prejudicial to any party. However, in a criminal trial, the more exacting standard, which the evidence must meet, is that set out in s137, which is in these terms: "s137 In a criminal proceeding, the Court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant." 38 In R v Blick [2000] NSWCCA 61, the Court (Sheller JA, James and Dowd JJ) described the nature of the task required by s137. It said this: (para 19) "19. When an application is made by a defendant pursuant to s137 to exclude evidence, the first thing the judge must undertake is the balancing process of its probative value against the danger of unfair prejudice to the defendant. It is probably correct to say that the product of that process is a judgment of the sort which, in terms of appellate review, is analogous to the exercise of a judicial discretion. ..." 39 The Court added: (para 19) "... Translated to the task set by s137, a trial judge's estimate of how the probative value should be weighed against the danger of unfair prejudice will be one of opinion based on a variety of circumstances, the evidence, the particulars of the case and the judge's own trial experience. In that sense, the result can be described as analogous to a discretionary judgment." 40 The approach which must be taken was described in these terms: (para 20) "20. Even so, and with due respect, there seems to me to be a risk of error if a judge proceeds on the basis that he or she is being asked to exercise a discretion about whether or not other admissible evidence should be rejected because of unfair prejudice to the defendant. The correct approach is to perform the weighing exercise mandated. If the probative value of the evidence adduced by the prosecutor is outweighed by the danger of unfair prejudice to the defendant, there is no residual discretion. The evidence must be rejected." 41 The term "probative value" is defined by the Dictionary in these words: "Probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue." 42 The Australian Law Reform Commission, in the context of the companion provision, s135(a), and the phrase "unfairly prejudicial", said this: (ALRC 26 Vol 1 para 644) "By risk of unfair prejudice is meant the danger that the fact-finder may use the evidence to make a decision on an improper, perhaps emotional, basis, ie on a basis logically unconnected with the issues in the case. Thus evidence that appeals to the fact-finder's sympathies, arouses a sense of horror, provokes an instinct to punish, or triggers other mainsprings of human action may cause the fact-finder to base his decision on something other than the established propositions in the case. Similarly, on hearing the evidence the fact-finder may be satisfied with a lower degree of probability than would otherwise be required." 43 In R v Lisoff [1999] NSWCCA 364, the Court of Criminal Appeal (Spigelman CJ, Newman and Sully JJ) identified the meaning of unfair prejudice in these words: (para 52) "In connection with the proper exercise of that statutory discretion, his Honour was required to bear in mind, among other things, a proposition that cannot be put more clearly and succinctly than is done in the relevant portion of the Australian Law Reform Commission Report which is quoted in Odgers: Uniform Evidence Law: 3rd Edition at 447: 'There is some uncertainty over the meaning of 'prejudice'. But clearly, it does not mean simply damage to the accused's case. It means damage to the accused's case in some unacceptable way, by provoking some irrational, emotional response, or giving evidence more weight than it should have.'" 44 Dunford J, in R v Serratore (1999) 48 NSWLR 101, provided a helpful summary of the principle: (at 109) "All relevant evidence led in the Crown case at trial is prejudicial to the accused, but it is only that of which the probative value is outweighed by the danger of unfair prejudice which is excluded; that is, evidence which has only slight probative value but which carries with it a probability that it be misused by the tribunal of fact in a way logically unconnected with the issues in the case: R v Lockyer (1996) 89 A Crim R 457; see also R v Singh-Bal (1997) 92 A Crim R 397." 45 The evidence of Witness B is obviously relevant. Mr Byrne SC, for Ms Suteski, did not contend otherwise. Witness B is alleged by the Crown to have been the person approached by Ms Suteski in order to harm Mr Peich. His interview includes his account of conversations with Ms Suteski, and his actions in consequence. An assessment of the probative value, required by s137, involves an evaluation of the worth of such evidence, and its capacity to rationally affect the assessment of facts in issue. The evidence must be examined in the context of other evidence in the trial. A number of records, according to the Crown, objectively support the account given by Witness B. Video surveillance evidence from the St George Leagues Club records the movements of various people on the evening of 20 December 1999, as described by Witness B. The phone records likewise support the account by Witness B of communication between the various participants that evening. 46 I accept, as a generality, that the evidence of Witness B has significant probative value. Some aspects are more cogent than others. I will deal with particular aspects of his evidence in the context of possible unfair prejudice. 47 Turning to that issue, many of Witness B's responses appear to carry no particular prejudice, unfair or otherwise. They relate to matters not seriously in issue. There are many examples. Ms Suteski's presence at the St George Leagues Club on the evening of Friday 20 December 1999 is an illustration. It is a significant aspect of the Crown case that Ms Suteski was present at the Leagues Club that evening (where Witness W lay in wait for Mr Peich). Her presence, however, was recorded on the surveillance video at the Club, and other records which form part of the Crown case. 48 The questions in the first part of the interview were reasonably open ended and non-leading. Having obtained Witness B's account, the police then put a number of suggestions to him for his comment. They were suggestions which had obviously come from others arrested the same day, Witness W and Ms Salem (Witness B's girlfriend) among them. Of particular concern is an allegation by Witness W made during his interview, which has been repeated in his evidence at this trial. The suggestion appears in the following questions put by the police to Witness B: "Q.282 I've also been told that she said, 'Stab him, bash him, kill him if you want, I don't give a fuck as long as he doesn't go to work'? A. Yeah. That's it. Q.283 Sorry? A. Yeah, yeah, yes. Q.284 Do you recall her saying that? A. Yeah, she said that a few times. Q.285 OK. Do you recall her using those words, 'Stab him, bash him, kill him if you want, I don't give a fuck as long as he doesn't go to work.'? A. Something like that, but not the exact words, you know ... Q.286 Words to that effect? A. Yeah." 49 Later in the interview the police put the same question again (Q.394). Witness B on that occasion responded: "Yeah, like, words like that." 50 The probative value of that evidence, in my view, is less substantial than Witness B's own recollection, unprompted by suggestions made by others. In the context of a police interview, there may be the temptation, on the part of the person being interviewed, to "go along" with suggestions which are put where they are not perceived as directly touching the person's own interests. The statement put to Witness B did, objectively, affect his interests adversely. The words of Witness W suggested a somewhat more serious assault. Nonetheless, the suggestion was, in its terms, attributed to Ms Suteski. One may rather doubt that Witness B saw clearly the implications which it carried for him personally. 51 The actual words attributed to Ms Suteski by Witness W are important. The words themselves are striking. I do not doubt that they would resonate with the jury, reminding them of Witness W's evidence. Witness B does not adopt these words. Indeed, he says, that "they are not the exact words". Yet their reception into evidence is likely to be taken by the jury as confirmation that the words were said (notwithstanding Witness B's guarded response). Taken in that way, they would damage the accused's case, in my view, in an unacceptable way by provoking an emotional response or being given weight that they should not have. The potential for unfair prejudice is therefore substantial. In my view it outweighs the probative value of the evidence. The evidence must therefore be rejected. 52 Shortly before these answers by Witness B, certain other suggestions were put to Witness B by the police. The transcript of the interview included the following: "Q279 I've been told that Snez said words to the effect of break his knees or his legs, do you recall her saying that? A. Beg yours? Q280 Break his knees or his legs? A. She wanted something like that." 53 Some of the same considerations apply in respect of this material. The question by the police is a leading question. The answer does not have the probative force of an unprompted response from Witness B. Again, Witness B may not have recognised the implications for him personally, in his agreeing with the proposition which was put. Although it was objectively against his interests (and therefore qualifies under s65(2)(d)), its weight is less substantial because he may not have fully perceived that that was so. 54 Nonetheless, Witness B does, guardedly, adopt the suggestion. The words are not likely to resonate with the jury in the way that Witness W's words will. Balancing the probative value of the evidence and the danger of unfair prejudice, I believe that the probative value outweighs such prejudice. The material should be included. Absence of notice 55 Witness B was foreshadowed as a Crown witness. His statement of 28 December 1999, and interview of 25 January 2000, were served as part of the Crown brief. 56 However, the Crown did not give notice in writing of its intention to adduce hearsay evidence in respect of Witness B, as required by s67(1). Nor was leave sought by the Crown under s192 for a direction under s67(4) that, despite the failure to give notice, s65(2) should apply. The presentation of Witness B's "evidence" by means of the video interview arose unexpectedly when Witness B refused to be sworn. When the admissibility of that material was argued, neither party adverted to the issue of notice under s67. 57 The material having been admitted, the Crown later drew my attention to this oversight. The matter was plainly one in which leave under s192(1) to give a direction under s67(4) was appropriate. The video evidence was relatively short (s192(2)(a)). It was plainly important (s192(2)(c)). Witness B was an accomplice to the murder (s192(2)(d)). He was the person who, on the Crown case, Ms Suteski approached in order to procure the assault upon Mr Peich. Mr Byrne SC, counsel for Ms Suteski, did not suggest any particular unfairness through the absence of notice. He acknowledged the issue arose unexpectedly (s192(2)(b)). Directions were given to excise certain parts of the interview, in accordance with these reasons (s192(2)(e)). 58 Mr Byrne, in these circumstances, did not oppose my giving a direction under s67(4) that s65(2) should apply, notwithstanding the absence of notice. I therefore give that direction. Order 59 The parties should therefore examine the video and the transcript which accompanies it, isolating and excluding the following: · First, those matters which, objectively, in the sense described in these reasons, are incapable of being described as against the interests of Witness B (such as his denial of allegations put to him by the police). · Secondly, those matters which can only be known to Witness B through conversations with others (such as the reference to Witness W having been phoned by Ms Suteski). · Thirdly, those matters where Witness B recounts conversations with others where the only relevance of those conversations is to prove the facts asserted (and therefore offend the rule requiring only first hand hearsay). · Questions 282 to 286 should be excluded, as well as question 394 and any repetition of the same question. ********** Last Modified: 03/28/2002 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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