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. 11 It is apparent that during the calls Danny Kalischer canvassed a variety of topics with the witness including the day on which the witness drove the accused to Kenthurst, the reason why the registration plates on the accused's motorbike had been removed, and what had occurred at a meeting in a cemetery between the witness and the accused. 12 A reading of the transcript of the evidence given by the witness after he returned to court following the calls reveals that he made endeavours to alter his evidence, at least in respect of the day upon which the trip had taken place. In evidence in chief (which took place prior to the phone calls), the witness gave clear evidence that the trip had taken place on the day of the murder, namely 15 February 2001. That was an important piece of evidence in the Crown's circumstantial case. It was also a matter about which Danny Kalischer was most insistent. He informed the witness that he had been in error in saying that the trip had occurred on 15 February and told him that it had occurred the day after. The witness agreed to fix up that aspect of his evidence if he got the opportunity. Evidence given by the witness subsequent to the making of the phone calls reveal that the witness was, at the very least, somewhat equivocal as to the date. His final stance is reflected in the following answer he gave to a question asked of him by counsel then acting for the accused: Q …I am suggesting you didn't drive your tipper or any other vehicle with the accused in it on 15 February 2001 and by that I mean nowhere, no how? A As I said, I can't be for sure, it could be possible, it may not be possible, I don't know. 13 Whilst it is true, as Mr McGrath pointed out, that this answer does not represent a total retreat from his recollection that the trip took place on 15 February, it is worth noting that the witness himself in conversation with Danny Kalischer had said, when this topic had been raised, "Well, yeah, I can't confirm the 16th because I can't have a memory". That was a reference, as I understand it, to his earlier evidence in which the witness had told the jury that he had memory problems. What he told Danny Kalischer in that remark is open to the interpretation that he was indicating that given that he had said that he had a bad memory he could hardly, in those circumstances, positively assert that he had a clear memory that the trip to Kenthurst took place on 16 February. 14 The Crown submitted that it could be readily inferred that the overtures made by Danny Kalischer in the intercepted phone calls constituted a continuing course of conduct. Indeed the witness appears, in terms, to agree to continue making telephone contact with Danny Kalischer at each break in the evidence. That arrangement can only have been made, it is submitted, so as to enable the witness to receive further instructions from Danny Kalischer about the evidence. 15 Moreover, the opening words of the first of the calls reveal that contact between the witness and Danny Kalischer had preceded that call, which, it is to be observed, was made by the witness. There is other evidence available which strengthens the inference that there had been earlier contact between them. First, Danny Kalischer and the witness together visited the accused whilst he was in custody on 24 June 2004, at a time which was after the committal hearing, and indeed after the creation of the fourth and final statement, but before he gave evidence at the first trial. Secondly, and of rather more significance is what emerges from the following passage of evidence given by the witness on 10 March 2005 at the first trial. It arose whilst he was being cross-examined by counsel then appearing for the accused: Q Sir, have you visited the accused whilst he was in custody bail refused on this charge at any stage? A Yes I did. Q Did you attend there at his request or what prompted you to visit him? A Mainly guilt. Q Just explain to us what you mean by that? A Well, apart from the coppers not chasing it up, if I didn't make any statement at all then he wouldn''t have served any time. Q He wouldn't have been in custody charged with this offence? A Because I was led to know time and time again that my evidence was the only evidence even connecting him with the case. … Q Sir, is it the case recently that the accused's brother assisted you to visit the accused's solicitor to speak to him about the evidence you were going to give in court? A Yes. Q Did you tell the solicitor in the interview with him about the evidence that you have given here during the course of this trial? A Yes. Q And is it the truth? A Yes it is. (T 473, 475) 16 The material to which I have just referred indicates very clearly, in my view, why the concession made by Mr McGrath as to the high probative value of this evidence was properly made. What the material is capable of revealing is that the witness was being "coached" by a third person whilst he was in the course of giving evidence. That state of affairs only needs to be stated to make it plain that it is material about which the jury is entitled to make an assessment when considering the witness' credibility and, in particular, whether he in fact made observations as to things which he said, in his original version, he had seen the accused do. 17 That leaves the question of the danger of unfair prejudice. As I have said, there is no evidence whatsoever that the accused was party to his brother's overtures. No such suggestion will form any part of the Crown case. Counsel also expressed concerns that other material appearing in the conversations could be taken to suggest that Danny Kalischer and the accused's counsel were in collusion, a matter which may in turn reflect adversely upon the accused. Although that evidence was led at the last trial, I need not consider this aspect of the matter any further as the parties have reached agreement that that material should be edited out, in the event that the overall objection to the admissibility of the phone calls is rejected. 18 In the final analysis, I have come to the view that this is a matter in which any danger of unfair prejudice can be adequately met by the giving of an appropriate direction to the jury. Indeed, after discussing the form of the direction with counsel I instructed the jury in the following terms: The evidence which you have heard includes telephone conversations between the witness and Danny Kalischer, who is of course the brother of the accused. These calls were recorded on 12 September 2005 during an adjournment in the previous trial of the accused. The present witness, Jacob Compagnon, had been giving evidence before the adjournment, and was due to continue giving evidence after the adjournment. It is critical that you understand that that evidence has only a very limited potential use. It is of course for you to determine what weight you attach to it but I warn you that you may only use it in order to assess the credibility of the current witness and, in particular, his evidence as to his reasons for having resiled from the version of events which he originally provided to those involved in investigating this matter. In the event that you were to conclude (and I stress that it is entirely a matter for you) that Danny Kalischer in some way influenced the witness in the fashion in which he gave his evidence then there is a further important direction which I give you concerning how you may not use the evidence. There has not been and will not be, any evidence in this trial to suggest that the accused himself permitted, encouraged, arranged or played any part in authorising Danny Kalischer to make these calls to the witness Jacob Compagnon. There is simply no evidence of that at all and it would be quite inappropriate in those circumstances for you to draw any inference adverse to the accused arising out of whatever you decide may be the situation between Danny Kalischer and the witness as revealed in those telephone calls. The Crown will not put any such submission to you. I direct you that it would be quite wrong to reason that because Danny Kalischer has come to some arrangement to influence the witness Jacob Compagnon, if that is what you find that he has done, that therefore the accused is in some way involved in that arrangement. There is, I repeat, simply no evidence to that effect. I will remind you of these matters again when I give you directions at the end of the trial. 19 Whilst not retreating from his original position, Mr McGrath conceded that that direction, which was given during the course of Jacob Compagnon's evidence, went some considerable distance towards overcoming the risk of unfair prejudice (T747). 20 I should indicate that although I was not asked to consider the various matters identified in s 192 of the Evidence Act, I have given due consideration to each of them in turn. I do not consider that there is any basis identified in the section which would justify the exclusion of the material. 21 On 17 March 2008 (T 741) I ruled that the objection would be overruled. These are my reasons for so ruling. ********** 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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