R v Abdallah (No. 4) [2014] NSWSC 286

Supreme Court New South Wales

Medium Neutral Citation: R v Abdallah (No. 4) [2014] NSWSC 286 Hearing dates: 17 - 21, 24 - 28 February, 3 March 2014 Decision date: 03 March 2014 Jurisdiction: Common Law - Criminal Before: Campbell J Decision: I will grant leave to the Crown to re-examine on each of the topics, but to re-examine by reference to the two statements of 4 January 2012. Catchwords: EVIDENCE - admissibility - credibility - leave to lead evidence of prior consistent statements Legislation Cited: Evidence Act 1995 (NSW) s 108 Category: Interlocutory applications Parties: Regina (Crown) Tarek Abdallah (Accused) Representation: Counsel: P Leask (Crown) D Dalton SC (Accused) Solicitors: Solicitor for Public Prosecutions (Crown) AHA Taylor (Accused) File Number(s): 2012/00008057

EX TEMPORE Judgment 1Mr Bill Boutsikakis is giving evidence before me. He is an eyewitness to the shooting in respect of which the accused is standing trial for murder. On Friday, the Crown foreshadowed during the cross-examination that an application would be made under s 108 of the Evidence Act 1995 (NSW) to lead evidence in re-examination of prior consistent statements made by Mr Boutsikakis. S 108 is in the following terms: (1)The credibility rule does not apply to evidence adduced in re-examination of a witness. ............... (3)The credibility rule does not apply to evidence of a prior consistent statement of a witness if: .................... (b)it is or will be suggested (either expressly or by implication) that evidence given by a witness has been fabricated or reconstructed (whether deliberately or otherwise) or as a result of a suggestion, and the Court gives leave to adduce the evidence of the prior consistent statement." 2In the course of the cross-examination, Mr Dalton of Senior Counsel, has suggested to the witness that in certain respects, he has reconstructed his evidence. There is no suggestion of fabrication, nor is it put to him that the evidence challenged on the basis of reconstruction has arisen out of a suggestion made by any person as to what it was he must, or might, have seen. 3As the Crown put it, there are three topics relevant to the application. They are as follows: (a)That the accused went around the back of his car to retrieve the gun that he used from the passenger's side of the vehicle in circumstances where the altercation with the deceased and his associates had occurred on the driver's side of the vehicle and that the shootings, in fact, occurred there; (b)That at the time he was first shot, Mr Todorovski was running away; (c)That the accused fired a series shots at the deceased, chased after one of his associates and returned firing further shots at the deceased at close range who was then immobilised on the ground. 4Mr Boutsikakis has given an account of what he saw on a number of occasions. First, he gave narrative to the 000 operator when he telephoned that number in the immediate aftermath of the shooting and that a recording of that call has been played to the jury and is exhibit P. Secondly, he gave a narrative to an attending police officer which was recorded in the officer's notebook, shortly after the police arrived. Thirdly, he made another account to police at the police station on the day of the shooting. 5Fourthly, about a month after the shooting, he was subjected to what is referred to as a walk-through of the crime scene where he was questioned by a police officer. And finally, he gave evidence at the committal proceedings that were undertaken in this case in about November 2012. The significance of the topics is not in doubt. Each of the three topics I have identified may be relevant to the question of whether the accused shot the deceased with intent to kill, or whether rather, he acted in self defence. 6In respect of topics one and two, it has clearly been put by Mr Dalton to the witness, that his evidence is erroneous, not because he has made it up, or not because he is a dishonest witness, but because, having been an eyewitness to a shocking and unusual event, he has from the outset, reconstructed his recollection, I will put it this way, in an innocent manner because of the effect of what he saw on his mental processes. And the cross-examination has skilfully proceeded highlighting a number of inconsistencies and recorded accounts which are, if I may put it this way, clear inconsistencies which have been later clarified. 7Given moreover, the witness has been cross-examined about the inconsistency between parts of his account and what might be referred to as incontrovertible or at least, unchallenged evidence arising out of the physical investigation carried out by the police. And moreover, that the account he has given in chief before the jury is inconsistent with the concession he made at the committal proceedings that he simply could not be sure how many shots were fired immediately, if I may put it that way, by Mr Abdallah at the deceased. All of this culminates in the suggestion to him that he must be wrong when he says there were two incidents of shooting of the deceased. 8Initially in his evidence, Mr Boutsikakis was adamant that there were two such incidents. However, it seemed to me that at the end of the cross-examination, particularly when he was challenged about what he had said at the committal proceedings, the jury may have been left with the impression that he was now uncertain about whether there were, in fact, two incidents or not. 9As I have said, the Crown need leave to introduce this evidence. In particular, it is proposed to read certain passages from the two statements of 4 January 2012, to play additional excerpts from the walk-through, and to ask questions about some of the evidence he gave in his evidence-in-chief at the committal. When a court is considering questions of leave, under the Evidence Act, it is required to take into account the matters referred to in s 192(2) of the Evidence Act. I record that the manner and tone of the cross-examination was completely fair and courteous to the witness, and that when he was cross-examined about what I have referred to as the clear inconsistencies in his statement, he was taken to those statements and the passages were read to him, not in full, but in a fair way to summarise their effect. 10It is also clear to me that with respect, the process of carrying out the walk-through was unsatisfactory, and as much is conceded by the Crown. It was unsatisfactory because it introduced confusion into the narrative given by the witness which, in essential terms, might have been considered to be relatively clear in the earlier statements and that the confusion according to the Crown's submission might have been borne out of the unfamiliarity of the officer who asked the questions, with the material already gathered by the police, or perhaps, by a failure on his part to fully appreciate the significance of some of the salient features of the account given by Mr Boutsikakis, in particular, in relation to the question about whether there were two shooting incidents on 4 January 2012. 11The factors to which I must have regard may be summarised as follows: the extent to which the grant of leave would effect the length of the trial; the extent to which the grant of leave may be unfair to a party or a witness; the importance of the evidence in relation to which leave, permission or direction is sought; the nature of the proceedings and the power of the Court to adjourn the hearing or make another order of a case management type which might assist the introduction of the evidence. 12Given that these proceedings are a criminal trial for murder, and that in those circumstances it is unlikely, at this stage, at the start of week three of the trial, that any adjournment or other case management order could be made that would facilitate the admission of the evidence, I think that I can say that those considerations weigh in favour of granting leave. 13However, it seems to me that in respect of the evidence at the committal, that it took place so long after the events with which we are concerned, and after Mr Boutsikakis had been subject to the unfortunate process of the walk-through, that to allow passages from that evidence to be introduced at this stage, would I think, unduly lengthen his evidence given there are other eyewitnesses, and it would be unfair to the accused to allow extensive parts of the transcript to be introduced after cross-examination has finished and by way of re-examination. 14I am also of the view that to allow extensive passages from the walk-through to be introduced into evidence, given that its unsatisfactory nature is common ground, would be unfair to the accused, in as much as those matters would be introduced as an exhibit. I interpolate that we have seen part of it relating to the accused allegedly shooting the deceased while he was on the ground, but introducing large slabs of it, it seems to me, would perhaps give it an appearance of weight, which given its unsatisfactory nature, it certainly does not deserve. And I would be against re-examination to introduce further excerpts of that material. 15However, there is no doubt, in relation to the statements of 4 January 2012 and indeed, in relation to the evidence that there were two incidents of shooting, that the evidence is important, and important in the way I have indicated. That is to say, it may be significant evidence, if it is accepted by the jury, and one, when considering questions of admissibility, always proceeds on the assumption that the evidence will be accepted, and entitled to significant weight in determining whether or not the Crown has proved beyond reasonable doubt that the accused shot with the intent of killing the deceased, or to put what in the context of this case might be the same thing another way, whether the Crown has successfully negated the issue of self-defence beyond reasonable doubt. 16The issue of self-defence is raised in this case because it is again common ground that the shooting was proceeded by a fight between the accused and the deceased, assisted his two associates, in which the first blows appear to have been struck by an associate of the deceased. 17Accordingly, for those reasons I will grant leave to the Crown to re-examine on each of the topics, but to re-examine by reference to the two statements of 4 January 2012. I would add the second topic is not very important because it seems to be accepted that the deceased was indeed attempting to flee from the gun produced by the accused at the time he was shot, but the combination of the three factors, in my view, are legitimate for the Crown's purposes. 18Moreover, in permitting re-examination, restricted to the contemporaneous statements I am influenced by the consideration that they may be entitled to significant weight if the jury accept them on the basis that they were obviously made at a time when the events were fresh in the mind of the witness.