R v Klein (No.4) [2008] NSWSC 340

New South Wales Supreme Court

CITATION : R v Klein (No.4) [2008] NSWSC 340

JUDGMENT DATE : 2 April 2008

JUDGMENT OF : Buddin J

DECISION : Objection overruled.

CATCHWORDS : Cross-examination by Crown of Crown witness upon credibility

LEGISLATION CITED : Evidence Act

CATEGORY : Procedural and other rulings

CASES CITED : R v Blick (2000) 111 A Crim R 325 R v Mundine [2008] NSWCCA 55

PARTIES : Regina Gaby Michael Klein

FILE NUMBER(S) : SC 2002/2281

COUNSEL : G Tabuteau (Crown) P McGrath (Accused)

SOLICITORS : S Kavanagh (Director of Public Prosecutions) (Crown) Andrews Solicitors (Accused)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

BUDDIN J

WEDNESDAY 2 APRIL 2008

2002/2281 – R v GABY MICHAEL KLEIN

JUDGMENT – Application to preclude cross-examination of Jacob Compagnon by the Crown about intercepted telephone calls (No.4) 1 HIS HONOUR: There have been two previous trials of the accused who is charged with the murder of Gary Moustafa. 2 At the last trial, leave was granted to the Crown Prosecutor, pursuant to s 38 of the Evidence Act, to cross-examine the present witness, Jacob Compagnon. During the course of that cross-examination four intercepted telephone calls between the accused's brother, Danny Kalischer and the witness were played to the witness. The calls all occurred over a period of about an hour on 12 September 2005 whilst the last trial was in progress. The witness was in the process of giving evidence at the time when the calls were made although he had been stood down whilst the Court was temporarily adjourned. Objection is taken to the Crown cross-examining the witness about those phone calls. 3 I have had occasion to listen to the calls, which were lawfully intercepted, and have been assisted in that process by a transcript. That has enabled me to assess the tone of voice used by the parties to the calls. It is common ground that the conversations to which objection is taken, are capable of being treated by the jury as instructions by Danny Kalischer to the witness about various aspects of his evidence and about what he should say about particular topics. That is a matter of some significance because Mr Compagnon provided several statements to prosecuting authorities in which he furnished material which inculpated the accused in the commission of the offence alleged against him. By the time he came to give evidence at the accused's first trial, and again at his second trial, he had resiled in important respects from what may be described as his original position. The Crown contends that the clear purpose of those instructions was to have the witness give evidence of a kind which would minimise the damage to the accused's case. 4 I should indicate that for the purposes of making this ruling I have read the evidence given by Jacob Compagnon at each of the earlier trials. 5 It is conceded by Mr McGrath, who appears on behalf of the accused, that even though the evidence goes solely to the credibility of the witness, it nonetheless has "a high probative value". Putting it another way, he readily accepts that the evidence has "substantial probative value" and that it satisfies the requirements of s 103(1) of the Evidence Act which provides that: [t]he credibility rule does not apply to evidence adduced in cross-examination of a witness if the evidence has substantial probative value. 6 Indeed, Mr McGrath was prepared to accept that the evidence may also fall within s 103(2))(a) of the Act which is in the following terms: Without limiting the matters to which the court may have regard in deciding whether the evidence has substantial probative value, it is to have regard to: (a) whether the evidence tends to prove that the witness knowingly or recklessly made a false representation when the witness was under an obligation to tell the truth, and 7 Mr McGrath nonetheless submitted that the evidence should be excluded pursuant to s 137 of the Act because the danger of unfair prejudice, should it be admitted, outweighs its probative value. The relevant principles to be applied are well-settled: see for, example R v Blick (2000) 111 A Crim R 325 and R v Mundine [2008] NSWCCA 55. Counsel identified the danger of unfair prejudice as being what he described as the inevitability that the jury would conclude that the accused's brother was acting at the behest of the accused although there is absolutely no evidence that that was the case. 8 The current application has proceeded upon the assumption that it can confidently be anticipated that the witness will, consistently with the evidence which he gave on the voir dire and at the earlier two trials, adhere to a version in which he will seek to explain his reasons for resiling from the evidence which he originally indicated that he was prepared to give (that is in his four statements) and from the sworn evidence which he gave at the committal hearing. The further assumption is that Mr Compagnon will maintain that what he said in his second and third statements, which were made to the Crime Commission, was a pack of lies and that he was importuned by officers of the Commission to give what he now contends was perjured testimony. 9 It is apparent that the credibility of the witness will be an important issue at the trial. An issue which will assume particular significance is the witness' explanation for having resiled from I shall describe as his original version. As I have said, his explanation lies in the fact that officers of the Crime Commission influenced him into giving the original version. It is anticipated that evidence will be adduced from officers of the Commission, as it was at the earlier trials, to rebut that suggestion. The Crown submits however that the real explanation for the witness' change of position is attributable to the actions of Danny Kalischer. Moreover, it is submitted that the intercepted phone calls provide direct evidence that he was instructing the witness as to the evidence he should give before the jury. 10 In order to get a flavour of the phone calls I set out below selected extracts from them: First call [at 12:26] DK Hello, mate. JC Yeah, is everythin' alright? DK Mate, no. The trip never happened. JC What trip? Yeah. DK The trip never, ever happened. Don't forget that bit. The trip happens and everything else. That's what you said in your last statement. JC What? DK Remember you in the last thing that you went there, you – the trip never, ever happened. Can you do me one last favour? Every time you get out, regardless of what it is, call me once. JC Yeah, if the trip never happened – which trip? DK The trip to – the trip to my place. When they're saying – because apparently you said the trip happened. JC Well it's too late now. DK Well, no it's not because you're, you're getting confused because you went there the next day. JC Mm. DK So on that particular date the trip happened when the phone call was made. Just remember that really clearly. JC Mm. DK Okay, when you made phone call to Jamie's phone, that's when it, that's when it happened. But when you saw the police, they told you that there were four witnesses to say that you were there the other day. JC Mm DK Okay, it's really important Jacob. That'll probably be the key thing. … DK Please remember one thing, you have a certificate, whatever you say from today – nothing can happen, providing you tell 'em the truth from today. Okay. It really has to come out, Jacob, about that trip, okay, in a real big way. JC Yeah. DK Okay, remember that trip – just understanding it, okay, the trip never happened. … DK But on that day, the day of the actual murder, you never came over. You went your way, Gubby went his way. JC Yeah. DK Can you fix that one up? JC If they ask me. DK Alright. JC No worries. … DK Alright, please listen, whenever you get out, at any stage, please just, just one thing, please call this phone. I'll call you straight back. Every time. Second call [at 12:57] DK Um, mate, three things, um, obviously you were called out, they went through everything, especially how you've now just admitted that it was the day that he went out with you. You got confused because you'd been told so many different dates for when the police told you very, very clearly that there were four witnesses. JC Yeah. DK The, the day you went out there was the sixteenth, the day after the murder, a hundred per cent it was the sixteenth and the reason you know… JC Yeah, well, I can't go confirm sixteen because I can't have a memory. DK No but what I'm saying is … JC Yeah, I can, I can confirm it for reasons but not the date. DK The, the reason you can remember it is, is because Gaby made a phone call on your phone to Jacob Compagnon and I was there. JC Gaby, Gaby made a phone call to who? DK To Jamie. JC Yeah. DK Jamie, Jamie Hall. JC Mm. DK Okay, Gaby made a phone call on your phone to Jamie Hall. JC Hm, hm. DK Okay, on that day. Remember another very, very major thing. When Gaby left Gaby couldn't have gone back to your place to get the gun because when you left the cemetery Gaby left with Laura, it's the fuckin' truth. JC Mm. DK Alright, re: did Gaby go back to your house to get a gun. JC No. DK It's absolutely impossible because Gaby left with Laura and you were in separate vehicles. JC No, I walked. DK Whatever. JC Mm. DK Whatever but Gaby left with Laura that particular day. JC Yeah. Third call [at 13:10] DK Mate, the dates are absolutely everything. JC Yeah. DK The dates, the dates are everything. JC Alright. DK Um, just the sixteenth, the same day you made a phone call, okay and just remember too, that um, another thing is the cemetery, the truth, he left with Laura. JC Mm. DK It's what, it's what Laura said, also, too don't also forget too, what happened at the committal, what she said to you about, make sure that all the stories are the same. JC Mm. DK Um, remember when you go motorbike riding you always take everything off. Fourth call [at 13:42] DK Just one last thing you need to remember is, everything in pretty much all your statement and everything is a lie. The reason you lied is number one, but don't go on about it, it's a lie, it's a lie. JC Hm. DK What about your Crime Commission report? It's a lie but it's a lie because I was bribed, it's a lie because they told me to put this in there. Um, what do you mean they told you to put it in there? They put, they told you to put it in there because they said that there were four people there that saw me, so I disagreed. Everything is a lie. It's gotta be on record, so at the closing the judge will then say that. That's everything Jacob said is a lie. JC Hm. DK Your, everything you're saying from today onwards, everything else does not exist. JC Hm. DK Your, everything you're saying from today onwards, everything else does not exist. JC Hm. DK Okay? To get pissed off remember – hang on, hang on. JC Yeah. DK Hang on. [PAUSE] Um, when you drove past the shop, that you mixed that up with your dates, like, you didn't, it didn't it, it couldn't have happened on the fifteenth, it didn't happen at all, well, they, you never drove past the shop. You mixed, yeah, you just, you fucked up with ya, you fucked up with your statement, that's all it is, you know that.