R v Castaneda (No 2) [2015] NSWSC 979

Supreme Court New South Wales

Medium Neutral Citation: R v Castaneda (No 2) [2015] NSWSC 979 Hearing dates: 17 July 2015 Date of orders: 17 July 2015 Decision date: 20 July 2015 Jurisdiction: Common Law Before: Wilson J Decision: Evidence admitted Catchwords: CRIMINAL LAW – evidence – voir dire – evidence relevant to credibility of the deceased Legislation Cited: Evidence Act 1995 Cases Cited: R v Aldridge (1990) 20 NSWLR 737 R v Burns [2003] NSWCCA 30 R v Lumsden [2003] NSWCCA 83 Category: Procedural and other rulings Parties: Regina Marcela Castaneda Representation: Counsel: P Barrett (Crown) P Strickland SC (Accused)

Solicitors: Solicitor for Public Prosecutions (Crown) Watsons Lawyers (Accused) File Number(s): 2013/56854 Publication restriction: Restricted to parties until a verdict is reached - Verdicts returned on 21 July 2015 and 30 July 2015

Judgment 1. HER HONOUR: On 17 July 2015 I allowed the accused to adduce evidence relevant to an assessment of the credibility of the deceased, over the objection of the Crown. These are my reasons for so doing. 2. The evidence the accused seeks to adduce concerns events from the deceased's life which could be suggestive of dishonesty on his part. The credibility rule (s.102 of the Evidence Act 1995) ordinarily precludes evidence of this nature from being given, subject to certain exceptions. 3. In 2001, when serving with the United States Air Force the deceased, Gregory Peck, was court martialled for offences of burglary and larceny. Although details of the offences are few, the burglary relates to a break and enter of a retail store, and the theft of property from the store. It appears that the larceny charge reflects that theft, rather than a separate crime. The deceased was convicted at his court martial, and sentenced to confinement for thirty days, forfeiture of a percentage of salary for a period, and "reduction to E-1" (VD Ex. M), presumably some loss of rank or other status. 4. In January 2009, after moving to Australia to live and work, the deceased was dismissed from his employment with Invacare for some alcohol related misconduct (VD Ex. K). I have already excluded that evidence as amounting to no more than evidence of bad character (R v Castaneda [2015] NSWSC 964) but the accused now seeks to rely, not upon evidence of the misconduct and dismissal previously excluded but rather, upon the deceased's failure to disclose those matters in subsequent applications for employment. 5. Evidence of this nature is clearly "credibility evidence" as defined by s.101A of the Evidence Act 1995 ("the Act"). 101A Credibility evidence Credibility evidence, in relation to a witness or other person, is evidence relevant to the credibility of the witness or person that: (a) is relevant only because it affects the assessment of the credibility of the witness or person, or (b) is relevant: (i) because it affects the assessment of the credibility of the witness or person, and (ii) for some other purpose for which it is not admissible, or cannot be used, because of a provision of Parts 3.2 to 3.6. 1. Mr. Strickland, senior counsel for the accused, relies upon s.108A of the Act as providing a basis for the admissibility of this evidence. The Crown argues that it is excluded by s.102 of the Act, and is not encompassed by s.108A. 2. Section 108A provides: (1) If: (a) evidence of a previous representation has been admitted in a proceeding, and (b) the person who made the representation has not been called, and will not be called, to give evidence in the proceeding, credibility evidence about the person who made the representation is not admissible unless the evidence could substantially affect the assessment of the person's credibility. (2) Without limiting the matters to which the court may have regard for the purposes of subsection (1), it is to have regard to: (a) whether the evidence tends to prove that the person who made the representation knowingly or recklessly made a false representation when the person was under an obligation to tell the truth, and (b) the period that elapsed between the doing of the acts or the occurrence of the events to which the representation related and the making of the representation. 1. The accused contends that the evidence of the deceased's convictions in 2001, and his dishonest omission in failing to disclose his dismissal from his position with Invacare in later employment applications, is admissible because of the relevance of this evidence to an assessment of the deceased's credibility. 2. The Crown has led evidence of four separate representations made by the deceased to others, which the Crown relies upon to establish the context in which it alleges the accused murdered the deceased, and also to establish a tendency on the accused's part to be violent towards the deceased. 3. The previous representations of which the Crown has led evidence are as follows. 4. Craig Beechey gave evidence on 17 July 2015 that, on 11 April 2012 the deceased telephoned him. Mr. Beechey deposed that the deceased said, "[…] 'You're not going to believe where I am' and I said, 'Where?', and he said, 'Hiding behind bushes beside my house. She's [the accused's] running round the house with a knife trying to find me." (T201:3 of 17 July 2015) 1. On 12 May 2012 Mr. Beechey was again told by the deceased of violence inflicted upon him by the accused: "[…] he [the deceased] had a small cut above his eye and his - his right eye. It was above the eyebrow. It was a little bit discoloured, bit reddish in colour and he said that she'd lost it and came at him with the beer bottle." (T201:36 of 17 July 2015) 1. The deceased also told Mr. Beechey about an incident at a Christmas function in December 2012, when, " […] he said that she'd lost it again and threw a glass at him." (T202:33 of 17 July 2015) 1. The Crown also led evidence from Andrew Hargreaves, on 16 July 2015, about an incident in 2012 when the deceased attended his place of employment (then at the RAAF base at Richmond) with a black eye. The deceased told Mr. Hargreaves that the accused had "smacked him in the eye with a mobile phone" (T171:41 of 16 July 2015) after an argument about the volume of the television that the deceased had been watching. 2. The Crown having led evidence of these previous representations made by the deceased to Mr. Beechey and Mr. Hargreaves, in circumstances where the deceased obviously cannot be called as a witness, the accused submits that credibility evidence of the nature sought to be led could substantially affect the assessment by the jury of the deceased's credibility: s.108A(1). 3. "Substantial" (or "substantially") is not defined by the Act or the Dictionary to the Act. It is however, a familiar word in the context of evidentiary rules since it is used frequently in the Evidence Act. "Substantially" appears in s.79, s.101, s.103, s.108C, s.111, s.126H, s.135, s.138 and s.177. 4. Evidence which could be important, or of real and persuasive significance, when assessing the reliability of statements made by the deceased, must be capable of substantially affecting the assessment of the deceased's credibility. 5. The context in which the assessment is to be made is important and is, to a significant extent, established by the nature of the case the Crown seeks to prove against the accused. 6. The Crown case, as it was opened to the jury, is that, in stabbing the deceased in the chest with a single fatal blow delivered on 22 February 2013, the accused was not, as she asserted immediately in a call recorded by the Triple 0 emergency service, acting in self-defence, but in retaliation or having been angered by the deceased's conduct. 7. There is nothing in the evidence of the stabbing and its immediate aftermath that can support the Crown case in that regard. 8. Only the accused and the deceased were present at the time of the fatal incident, and the deceased did not survive the blow long enough to give an account of it. Thus only the accused's account is available. The accused has consistently asserted that the deceased attacked her and, fearing for her safety, she pushed out at him to stop his onslaught, striking the fatal blow in the process. Although the level of detail given by Ms. Castaneda differed between conversations, she has consistently maintained the content, that is, that she acted in self-defence. This was asserted to the Triple 0 operator, to the first police to respond to her call for help, and to her former husband, to whom she spoke in the hours after the stabbing. Her accounts to these individuals are all available to the jury to go to the truth of what she said: s.66 of the Act. 9. That the deceased in fact attacked Ms. Castaneda as she claimed, and that she had reasonable cause to be fearful, is made more probable by evidence that the deceased had subjected the accused to earlier acts of violence, resulting in the attendance of police to the couple's home on at least one occasion, and in the issue of an interim apprehended domestic violence order against the deceased for the protection of the accused, in 2012. 10. The reliability of the accused's claims in this regard must be discredited or rebutted if the Crown is to negative self-defence and establish the offence charged. To do so the Crown has led evidence in an attempt to establish that the accused had been violent to the deceased prior to the fatal stabbing, and that she had a tendency to be violent towards him more generally. Part of that evidence is the representations made by the deceased to Mr. Beechey and Mr. Hargreaves. 11. In that context, what the deceased said to others about the accused's supposed violence has the capacity to have great importance to the jury's consideration of whether the Crown has negatived the issue of self-defence. Indeed, it may take on a degree of prominence. 12. That being the case, evidence which can inform the jury's assessment of the deceased's credibility may have importance. 13. In considering whether the evidence could substantially affect the assessment to be made by the jury of the credibility of the deceased regard must be had to those matters set out in s.108A(2) of the provision. The matters there listed are not exhaustive. Section 108A(2)(a) refers to whether or not the evidence tends to prove that the maker of the representation made a false representation when subject to an obligation to be truthful. Plainly, evidence which is indicative of any disregard for such an obligation, such as the obligation that applies to a witness giving evidence in court proceedings, could have very considerable importance, in that it may suggest that a witness did not take his or her oath or affirmation seriously, and was a person not be believed. 14. The fact that the representations were not made at a time when the deceased was obligated to be truthful would ordinarily militate against the admission of credibility evidence. It can probably be comfortably said that many people fail to be always and completely truthful in every aspect of daily dealings with others, but that failure may say nothing at all about an individual's overall credibility, and need not be addressed by the admission of credibility evidence. 15. The representation as to the deceased's employment history raises some question of obligation in that, despite the evidence of Mr. Beechey on the point, there is a general obligation upon candidates for employment, which is moral and sometimes legal, to give a truthful account of matters relevant to work history. In some circumstances, it could constitute an offence against the criminal law if a job applicant were not truthful about a material matter in his or her work history. I do not regard the issue of temporality as of great significance here: s.108A(2)(b). 16. It must be borne in mind however that s.108A(2) is not an exhaustive list of relevant considerations, and nor does it dictate the resolution of the issue posed by s.108A(1). 17. The pertinent question is the capacity of the credibility evidence the accused wishes to lead to substantially affect the assessment of the credibility of the deceased, and thus whether or not his statements concerning the accused's violence towards him are such as the jury should accept as reliable. 18. In a case where the issue of self-defence is the only issue that the jury will have to determine, whether or not the deceased was always a reliable historian about matters personal to him must take on great weight. If he was a person whose account of personal matters could generally be accepted as reliable and credible, it would be open to the jury to give considerable weight to his previous complaints of violence towards him by the accused when assessing the accused's claims to have acted in self-defence. 19. If there are matters that could suggest that he was not always or even mostly a reliable historian, the jury may be more sceptical when assessing whether the Crown has negatived the issue of self-defence. That is, it would be open to the jury in possession of such evidence to view the Crown's argument (advanced in reliance upon tendency evidence) that the accused acted from anger or in retaliation in stabbing the deceased with some scepticism. 20. The accused argues that it is important that, when considering the evidence of these prior representations by the deceased as to violence meted out to him by the accused, the jury have information relevant to the deceased's credibility. 21. The accused referred the Court to a number of authorities in support of her argument.