New South Wales Supreme Court CITATION : R v Klein (No.5) [2008] NSWSC 336 JUDGMENT DATE : 4 April 2008 JUDGMENT OF : Buddin J DECISION : Objection upheld. CATCHWORDS : Admissibility of evidence given by witness as to observations of an object LEGISLATION CITED : Evidence Act CATEGORY : Procedural and other rulings CASES CITED : Guide Dog Owners' and Friends' Association Inc v Guide Dog Association of New South Wales and ACT and Another (1998) 154 ALR 527 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 FRIDAY 4 APRIL 2008 2002/2281 – R v GABY MICHAEL KLEIN JUDGMENT – Objection to evidence proposed to be given by Pieta Lane (No.5) 1 HIS HONOUR: Objection is taken by Mr McGrath, on behalf of the accused, to evidence which the Crown seeks to lead from a witness named Pieta Lane. She was the de facto partner of the accused for a period of time which ended shortly before the murder of the deceased on 15 February 2001. The evidence to which objection is taken concerns observations made by Ms Lane in the bedroom she then shared with the accused. The evidence which the Crown seeks to lead emerges from a transcript of the evidence which Ms Lane gave before the NSW Crime Commission on 2 August 2001. It is convenient to set out the relevant parts of that evidence: Q Have you ever seen (the accused) with a gun? A No I haven't. Q Do you know him to have possessed a gun? A Yes I do. Q How do you know that? A Because it was in the bedside table . … Q And there was a bedroom that was the marital bedroom if you like? A If you like to call it that, yes. Q Where there was a common bed? A That's correct. Q And beside that bed were one or more bedside tables? A There would be two bedside tables. Q At each side? A One on each side. Q And did you commonly sleep on one side and Gabby on the other? A Generally, yes. Q And in one of those bedside tables, you found…? A I believe that there was a gun there, yes. Q What's the basis for that belief? A I saw it. Well I think I saw it. I believed that that's what it was. I didn't actually investigate it too much. Q Which side of the bed was that? A It would have been on the right side of the bed. Q Whose side is that? A Predominantly Gabby's Q Right. Do you know how the gun got there? A No I do not. Q Had you seen it before? A No I had not. Q Did you discuss it with anyone? A No I did not. Q Did you do anything with it? A No I did not. Q What did it look like? A I don't know, I didn't actually see it. I only saw the leather pouch in which it was kept. Q So it was a hand gun? A I don't know. I don't know anything about guns and I'm only going by the shape of what was in there. Q You would have seen guns on television? A Yes. Q And some of them quite small? A That's correct. Q With little barrels and you can hold them in your hand and put them in your pocket. That sort of gun? A I understand what you're saying, but I didn't actually physically see the gun itself. I only saw the pouch. Q Alright, but it was the sort of pouch that would hold a gun that you could put in your pocket? A I would have to assume that. Not having a lot to with …having anything to do with guns, I would have to assume that. Q Was it…what was the pouch made out of? A Leather. Q And what colour was it? A Perhaps a brown colour. Q Did it have straps or anything attached to it? A Nothing identifiable, no. Q Did it look like the sort of holster that you wear on your belt or under your arm or around your ankle? A It was just a leather pouch, sitting in the drawer. That's it. It's about as descriptive as I can get, sorry. Q And could you see any metal protruding from… A No I could not. Q Nothing at all? A Nothing at all. … Q What were the dimensions of this leather pouch would you say? A I'm not very good with that sort of thing…I don't know. Probably be about that long… Q You're indicating about a hundred and fifty millimetres. Six inches. A Thank you. Perhaps… Q Yes. And the width of it? A I couldn't say for sure. … Q Sort of roughly triangular? A God..um…perhaps. Q What made you think it had a gun inside it? A Just purely from the shape of it. Just…dunno. Just purely from the shape of it. Q Right. A It's a soft leather pouch we're talking about, it's not a hard leather pouch, so… Q I see. Could you see that there was something in it? A It was…there was bulk in it, yes. Q Did you ever discuss with Gaby the issue of seeing this object in the drawer? A Yes, sorry… I mentioned before that I didn't, but yes I did actually bring it up with him Q What did you say to him? A I just said…asked him why it was there. … Q And what did he say to that? A Honestly I…I don't recall, other than that he would get it out of the house. Was basically the gist of the conversation Q So he indicated he would get it out of the house? A That's correct. … Q Do you know where…sorry, I'll withdraw that. Did he ultimately remove it from the house? A As to the best of my knowledge, yes he did. … A To the best of…okay, to the best of my knowledge, it doesn't…it no longer exists. It doesn't…he doesn't have it. He doesn't hold it and I don't know where it is, and you're talking about something that happened in…last year. In the middle of last year. Q Yes but… A To the best of my knowledge, it's gone. Q …about seven moths prior to the murder. A Okay? … Q Because you saw it. You discussed it… A Well I assume that I saw what I believed to be a gun. Q Yes. And…and in subsequent conversation with him, he conceded that it was his. A He did not confirm or deny that there was a gun sitting in the drawer, but he said he would get rid of the object that was in the drawer. Q Your assumption at least was that it was a gun… A That's correct. Q …and that it was his. A I don't know that it was his, but it was in the drawer, and it was a gun, to the best of my knowledge. 2 Ms Lane subsequently gave evidence at the second trial of the accused. As I understand the situation, she effectively resiled from that evidence. 3 On 25 October 2005 Ms Lane gave further evidence before the Crime Commission. It is that evidence which the Crown wishes to lead from her. The relevant parts of it are extracted below: Q Did you ever make an assumption that the leather pouch in the bedside table or drawer contained a dangerous item? A Yes I did. Q Did you have the belief that it may well have been a gun? A At the time, yes I did. Q That time was prior to the murder of Mr Moustafa, wasn't it? A That's correct. Q You asked Mr Kalischer to get rid of the item – correct? A That's correct. Q You say you did not discuss exactly what it was? A No, Q My proposition is correct? A That's correct. Q But that he got rid of it without explanation from you? A That's correct. … Q You remain of the view today that that pouch contained a dangerous item, don't you? A Yes. Q And you believe that it was most likely a gun? A Yes. Q It, at the very least, had the shape, approximate shape of a gun? A Yes. Q It looked to be – have the hardness of a metal object.? A Yes. Q You believed it was a gun? A Yes. Q And you believe that today, don't you? A Yes. Q In the Supreme Court you attempted to back away from all of those propositions as much as possible, didn't you? A Yes. … Q There were two different leather pouches, is that correct? A That's correct. Q He had one pouch for tobacco and a pipe? A Yes, that's correct. Q He had another pouch in which he had a gun? A I couldn't say for sure but I would have to be consistent with what everyone else is saying and say, yes. Q No? A No, okay, yes, yes he did. Q Just give me your evidence, not their's [OVERTALK] A Yes, sorry, yes, yes, yes. Q It looked like it had a gun… A Yes. Q …in it? And you believed it had a gun in it? A Yes. Q And it was the pouch with a gun in it that you asked him to get rid of? A That's correct. Q And it subsequently do you say, disappeared from the side beside furniture? A That's correct. Q And did you ever see it again? A No, I did not. Q I think you are now aware that several witnesses including yourself, reported to authorities that there was a pouch with a gun in it. A Mmm . Q You understand that? A Yes. 4 As I have indicated, Mr McGrath objects to the Crown leading that evidence. His submission is that, at its highest, it amounts to nothing more than a belief or an assumption on the part of Ms Lane that what was contained in the pouch was a gun. His submission is that, in the ordinary course of events, a witness is confined to giving evidence about what direct observations he or she is able to make. Accordingly, the evidence is simply irrelevant because no rational basis for her view has been established. Alternatively, he contends that the witness is purporting to give what amounts to opinion evidence without a proper basis for doing so. Although a lay witness is permitted to give opinion evidence, pursuant to s 78 of the Evidence Act, as to what the person saw, heard or otherwise perceived about a matter, a rational basis for the holding of the opinion or perception must first be established: see Guide Dog Owners' and Friends' Association Inc v Guide Dog Association of New South Wales and ACT and Another (1998) 154 ALR 527. Mr McGrath submitted that no such foundation had been established in the present case. In that respect, it is pertinent to firstly recall that the witness gave evidence that she was unfamiliar with guns. Secondly, she said that she had not been told what was in the pouch. Thirdly, she said that she had not seen what was inside the pouch and finally she said that she had not handled the pouch. 5 Mr McGrath next submitted that the evidence of Ms Lane on 25 October 2005 before the Crime Commission did not materially alter the state of affairs which she had described on 2 August 2001. He contended that, if contrary to that submission, her evidence was to be properly understood as advancing the Crown case, then it was important to assess her evidence in the light of what the Commissioner told the witness immediately prior to the evidence which I have just recounted. Q …You've been before the New South Wales Crime Commission on two occasions now and given sworn evidence. It doesn't get more serious. Now don't you answer questions that are put to you – I would have to say yes, because already you have asserted that false evidence you gave was because you were intimidated into giving that evidence by Mr O'Connor's threats. Now you think about it. There was a pouch.. A Yes. Q …containing a gun. That evidence has been given by a number of witnesses in the Supreme Court and Mr Kalischer has been convicted of murder as a consequence, and you're saying the combination of the pouch and the gun was an invention by you. It just happens to have been plucked out of the ether by you and it directly accords with the evidence given by the others. Now I'm going to take an adjournment for five minutes. When I come back, you're going to be given an opportunity to tell the truth. Now I want you to have a conversation with your attorney and he'll give you some advice. It's not for me to advise you about these things and when you come back I want to hear the truth and I'll delay this other witness until I get the truth. 6 Mr McGrath pointed to a number of problems which arose as a consequence of that intervention by the Commissioner as well as a second intervention which occurred just before the witness gave evidence about seeing the accused with two different pouches. First, he submitted that what the Commissioner told her about what other people had said was inaccurate. Secondly, he submitted that the Commissioner made it clear that the questioning of the witness would continue until she told the truth as the Commissioner perceived it. These matters would, it was contended, have a significant impact upon the probative value of Ms Lane's evidence. He also submitted that considerable prejudice would be occasioned to the accused if the material was admitted into evidence because he would be inhibited in the manner in which he would wish to cross-examine the witness. It would scarcely be in the accused's interests, he submitted, to elicit the fact that the evidence which she had given had been prompted by remarks from the Commissioner, that a number of witnesses had given evidence in the Supreme Court that the pouch contained a gun and that, as a consequence, the accused had been convicted. 7 Whilst I accept that there is considerable substance in Mr McGrath's submissions, I do not need to determine the present issue upon any of those bases because in my view, there is an even more fundamental difficulty with the evidence. The incident about which Ms Lane gave evidence apparently occurred seven months before the murder. There is other evidence before the jury from Laura Saaib that she saw a silver gun in a cloth under the accused's bed a few days before the murder. There is also evidence that the accused, in the presence of his friend, Jacob Compagnon, retrieved a gun of a similar description from the roof of Mr Compagnon's house, two days after the murder. That was in circumstances in which the accused had gone to that house immediately following the murder and had been able to gain access to it, even though Mr Compagnon had not been there at the time. That evidence emerged from a statement which Mr Compagnon had provided to the police and became part of the evidence before the jury pursuant to a grant of leave under s 38 of the Evidence Act. 8 In the circumstances which I have outlined, I am of the opinion that the necessary forensic link between the item in the leather pouch (assuming for present purposes that it was a gun) and the weapon referred to by Mr Saaib and Mr Compagnon cannot be established. That being so, the evidence of Ms Lane can go no further than an observation that the accused was in possession of a gun which cannot be more precisely described, seven months before the murder. In the circumstances the observations of Ms Lane constitute nothing more than evidence of propensity. Accordingly the evidence attracts the operation of s 137 of the Evidence Act, such as to require its exclusion. 9 I have already upheld the objection [T1038]. 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