Supreme Court New South Wales Medium Neutral Citation: R v Manevski [2016] NSWSC 1032 Hearing dates: 20 July 2016 Date of orders: 20 July 2016 Decision date: 29 July 2016 Jurisdiction: Common Law - Criminal Before: Button J Decision: Leave was granted to Crown Prosecutor, but only if cross-examination occurred in the following general way: see paragraph 46. Catchwords: CRIMINAL LAW – evidence – application to cross-examine the accused to rebut evidence of good character – whether accused intentionally raised evidence of good character generally or specifically – whether leave should be granted – whether the probative value of the evidence outweighed by the danger of unfair prejudice – leave to cross-examine granted on a limited basis Legislation Cited: Evidence Act 1995 (NSW), ss 110, 112, 137, 192, 192(2) Cases Cited: Gabriel v The Queen (1997) 76 FCR 279 PGM v The Queen [2006] NSWCCA 310; (2006) 164 A Crim R 426 Category: Procedural and other rulings Parties: Regina Rachel Manevski Representation: Counsel: B Campbell (Crown) J Fitzgerald (Accused) Solicitors: Office of the Director of Public Prosecutions (Crown) Legal Aid New South Wales (Accused) File Number(s): 2014/46254 Judgment Introduction 1. During the cross-examination of the accused, the Crown applied for leave to cross-examine her about an aspect of her character. After hearing submissions, I granted that leave on a very limited basis, and indicated that I would give reasons later, so as not to interrupt the smooth running of the trial. This judgment represents those reasons. Background 1. The background of the application was as follows. 2. On 13 July 2016, the accused, Rachel Manevski, was arraigned on an indictment before a jury panel and me at Newcastle. The indictment contained two counts: first, a count averring that, on 13 February 2014 at Niagara Park, she murdered Kieran Priestland; and, in the alternative, a count averring that, the murder having been committed by Andrew Perkins, she was an accessory after the fact to it. 3. The trial commenced immediately upon her pleas of not guilty. It quickly became clear that the major issue with regard to the count of murder was whether the accused had entered into a joint criminal enterprise with Mr Perkins to kill or inflict grievous bodily harm upon the deceased. 4. During the cross-examination by defence counsel of Detective Senior Constable Green (the officer in charge of the investigation), the following exchange occurred (at TT 377.46 – 378.01): Q. Now, detective, as the officer in charge, have you made enquiries regarding the antecedents of my client Rachel Manevski? A. I have. Q. And are you able to tell the Court that Ms Manevski has never been convicted of any criminal offence whatsoever, violent or otherwise? A. Prior to this matter, yes. Q. She's not convicted. A. My apologies. No, she hasn't, that's right. Sorry. 1. No evidence was led to rebut that proposition in the Crown case. Nor was any application to do with the character of the accused in a specific respect or generally made by the Crown Prosecutor during the Crown case. 2. The Crown case closed on 19 July 2016. During the evidence of prosecution witnesses, on at least a dozen occasions I had interrupted witnesses if they were giving discursive answers, and respectfully requested them to answer a direct question directly. Central exchange 1. The accused was the only witness in the defence case. She entered the witness box on the afternoon of 19 July 2016. 2. Towards the end of her evidence-in-chief on 19 July 2016, the following exchange occurred between the accused and her counsel (at TT 431.34-37): Q. Did you at any time agree with Mr Perkins, or anyone at all, to cause any injury at all to Mr Priestland? A. No, never, ever. Anyone that knows me knows I would never do anything like that to anyone. 1. The next morning, in accordance with my general request that my Associate be informed electronically of any potential upcoming legal disputes, the Crown Prosecutor informed my Chambers (and defence counsel, of course) that there would be an application founded on that part of the evidence-in-chief of the accused that I have extracted. 2. The foreshadowed application was duly made, and opposed by defence counsel. 3. In the meantime, on the morning of 20 July 2016, the jury requested a complete transcript of the evidence of the accused; with the agreement of both counsel, I indicated that their request would be fulfilled as soon as reasonably practicable. Submissions of the Crown 1. In a nutshell, the Crown Prosecutor explained that the reference in the cross-examination of the officer in charge to the absence of a criminal record on the part of the accused was by agreement between counsel. It was also agreed that adduction of that evidence from the detective in cross-examination did not constitute raising of character generally, but rather in a particular respect (I interpolate that I am not entirely convinced of that proposition, but because the position of the parties was a joint one, there is no need for me to discuss it further). 2. The evidence adduced in examination-in-chief of the accused, however, was said by the Crown Prosecutor to fall into a different category. It was said that the accused had positively intended to adduce evidence to prove, at the least by implication, that she was not a violent person at all. It was said that the Crown should be granted leave to cross-examine the accused about an incident, founded upon a statement of a young woman of 14 February 2014, and provided to police very shortly after the alleged murder occurred. 3. That statement was tendered, and became Voir Dire Exhibit A. The Crown Prosecutor placed particular reliance on para 8, which in its entirety is as follows: 8. About 11am on 12 August, 2013, I was walking into the Gosford TAFE. As I was walking up some stairs I saw [the accused] walking towards me. I hadn't met her before but I recognised her through Facebook photos I had seen of her. She was about 5 meters away when I saw her. I also saw Andrew [Perkins] further away in the distance. She walked up to me and said, "Are you [the complainant]". I was a bit scared of her and didn't want any confrontation so I said, "No". She said, "Yes you are. You better stay away from my boyfriend slut". I saw that she had a stick in her hand and she was pointing it towards me. It was a small tree branch about 15 centimetres long. Rachel was pretty close to my face and was speaking aggressively towards me. She said, "Stop inboxing my boyfriend. You're dead. I'll kill you and your family. I'm a fucking psycho". As she was saying these things she has pressed the stick against my forehead. 1. The Crown Prosecutor submitted that the accused (as opposed to her counsel) had deliberately gone beyond the limited evidence of good character that had been adduced by agreement from the officer in charge in cross-examination. By way of her discursive response to the question of her counsel, he submitted, she had given the jury the impression that she was a person who would have no connection with any form of violence. And yet that impression, based upon Voir Dire Exhibit A, was said to be demonstrably false. 2. In short, it was said that I should grant leave to permit the Crown to correct the false impression that would otherwise be made upon the minds of the jury. Submissions of the accused 1. In contrast, defence counsel submitted that the accused had indeed raised her character in a further way, but only in a further particular respect. In short, he submitted that her words should be interpreted as being an assertion that she would never agree with another person to involve herself in violence, rather than asserting that she would never commit an act of violence herself. 2. In other words, defence counsel submitted that, if the Crown had evidence available to it that the accused had previously agreed with another person to commit violence, perhaps there could be a grant of leave in that regard. But the proposed cross-examination was said not to "mirror" the aspect of her character that had been raised by the accused in a particular respect. 3. In the alternative, if I were against him on that reading of what the accused said, defence counsel relied upon the well-known "discretion" contained in s 137 of the Evidence Act 1995 (NSW) (the Act), and submitted that the evidence, in all the circumstances, should be excluded pursuant to that discretion. Determination 1. Turning to my determination, each counsel agreed that the question called for consideration of the following sections of the Act: first, s 110 of the Act; secondly, s 112 of the Act; thirdly, s 192 of the Act; and finally, s 137 of the Act. 2. Turning to the first matter for consideration, s 110 is as follows: 110 Evidence about character of accused persons (1) The hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced by a defendant to prove (directly or by implication) that the defendant is, either generally or in a particular respect, a person of good character. (2) If evidence adduced to prove (directly or by implication) that a defendant is generally a person of good character has been admitted, the hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced to prove (directly or by implication) that the defendant is not generally a person of good character. (3) If evidence adduced to prove (directly or by implication) that a defendant is a person of good character in a particular respect has been admitted, the hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced to prove (directly or by implication) that the defendant is not a person of good character in that respect. [emphasis added] 1. It is clear that what had to be demonstrated was a positive intention to raise character, either generally or in a particular respect: see Gabriel v The Queen (1997) 76 FCR 279 at 296-7; and PGM v The Queen [2006] NSWCCA 310; (2006) 164 A Crim R 426 at [35]. 2. Contrary to the submission of defence counsel, I was satisfied that, in the witness box, the accused deliberately and intentionally attempted to give the jury the impression that she was not a violent person at all, thereby raising her character in a further particular respect beyond her lack of a criminal record. I came to that view for the following reasons. 3. First, her answer was discursive; in truth, the question of her barrister could have been answered directly and emphatically by saying something along the lines of "No, of course not". 4. Secondly, I believed that the words spoken inherently had a flavour of deliberateness. 5. Thirdly, as I remarked to defence counsel during discussion, her discursiveness needed to be seen in the context of the accused having observed me repeatedly require direct answers to direct questions of many witnesses. Indeed, before the exchange in question, I had made the very same request of her twice during her evidence-in-chief. 6. Fourthly, I did not accept the alternative grammatical reading proposed by defence counsel of what the accused said. Without being overly punctilious about prepositions, it could be said that, if the accused had truly been denying a propensity to enter into agreements to commit violence, as opposed to violence itself, then the preposition "with" would have been used in the second line of her answer, as opposed to the preposition "to". And speaking more generally, I did not accept that the accused was seeking to make such a limited and highly artificial assertion as to deny agreements to commit violence, but not violence itself. 7. In short, I considered that the essential preconditions for the application of the Crown contained in s 110 of the Act had been made out: there had been a positive, intentional assertion that the accused was (at the least, by implication) a person not prone to acts of violence. 8. Turning to s 112 of the Act, it is as follows: 112 Leave required to cross-examine about character of accused or co-accused A defendant must not be cross-examined about matters arising out of evidence of a kind referred to in this Part unless the court gives leave. 1. There is no doubt that, by that section, Parliament has imposed an additional important fetter upon cross-examination of an accused person about his or her character (interestingly, as opposed to the leading of evidence in rebuttal of good character, with regard to which there is no requirement for leave). 2. That fetter leads one to consider the factors enumerated in s 192(2) of the Act. Without extracting them verbatim, I briefly record my analysis of each of those factors. 3. First, as for the extent to which granting leave would be likely to add unduly to, or to shorten, the length of the hearing, I considered that the topic could be dealt with in cross-examination in no more than 10 minutes: s 192(2)(a) of the Act. 4. Secondly, as for the extent to which granting leave would be unfair to a party or to a witness, I considered that the adduction of the evidence rebutting good character could lead to unfairness to the accused, if used wrongly by the jury. To be weighed against that possibility was the fact that it would be unfair to the Crown for the evidence of the accused to be left uncontradicted: s 192(2)(b) of the Act. 5. Thirdly, as for the importance of the evidence in relation to which the leave was sought, I considered that the question of the good character or otherwise of the accused was certainly important, as it is in any criminal trial in which it is raised, and especially in light of the fact that the Crown case for murder bordered on the bizarre with regard to motive: s 192(2)(c) of the Act. 6. Fourthly, as for the nature of the proceeding, I considered that the fact that this was a murder trial (as opposed to some less serious criminal prosecution) meant that it was important that all issues before the jury be able to be properly ventilated by both parties. As well as that, at the time I made my ruling, it was clear that the jury would have a transcript of the entirety of the evidence of the accused. That meant that it was impossible for the answer that she gave in evidence-in-chief to be "skated over" by agreement in the final addresses, or in my summing-up: s 192(2)(d) of the Act. 7. Fifthly and finally, as for any power reposed in me to adjourn the hearing or to make another order, or give a direction in relation to the evidence, I considered that, other than granting leave on terms as I thought fit, no other ancillary order was reasonably practical. Separately, I bore in mind the undoubted need for me to direct the jury with unmistakable clarity about the use to which they could put evidence led in rebuttal of good character, and the uses to which they must not put such evidence: s 192(2)(e) of the Act. 8. Bearing in mind the important fetter of leave that Parliament has imposed, and having analysed that fetter in accordance with s 192 of the Act, I came to the opinion that leave should be granted, albeit on strictly limited terms. 9. Finally, turning to s 137 of the Act, I came to the view that, if para 8 of Voir Dire Exhibit A in its entirety had been permitted to form the foundation of cross-examination of the accused, then the prejudicial effect of that cross-examination on this murder trial would indeed have outweighed the probative value of the evidence rebutting good character. 10. In particular, it can be seen from Voir Dire Exhibit A generally that the subject matter of the asserted dispute between the accused and the other young woman was allegedly Mr Perkins. And my understanding of the Crown case for murder in this trial was that part of the motivation for the offence could have been ill-feeling felt by the accused about the relationship between Mr Perkins and another young woman, Ashleigh Cornish. I took the view that that part of the rebutting evidence should not be permitted, pursuant to the combined effect of s 192 and s 137 of the Act. 11. In the same vein, it can be seen from para 8 of Voir Dire Exhibit A that the accused allegedly made a threat of death against the young woman and her family. Again, a central part of the Crown case for murder was that the accused had openly announced her intention to kill the deceased shortly before she played a role in doing so. In her evidence-in-chief, the accused had firmly denied saying such a thing. Again, I thought that that aspect of para 8 of Voir Dire Exhibit A, if led merely to rebut evidence of good character, could be too prejudicial, especially with regard to the jury reflecting on a possible tendency to speak in such a way on the part of the accused. And I maintained that view despite whatever ameliorative directions I may have been able to craft. 12. In short, I came to the view that the proposed evidence could not be led in cross-examination in its entirety. Having said that, I also came to the view that, if shorn of its most prejudicial aspects, it should be placed before the jury. In particular, I considered that not to permit the Crown to explore the evidence in cross-examination could lead to the jury being left with a completely false impression about the character of the accused. 13. To summarise: I came to the view that the preconditions for the receipt of evidence rebutting good character had been established; that leave should be granted with regard to the evidence, but on strict terms; and that, once the evidence was shorn of its most prejudicial aspects, I should not refuse to admit the evidence pursuant to s 137 of the Act. 14. Finally, of course, at the time I made the decision to permit the cross-examination, I was determined to give the jury clear directions in my summing-up about the very limited way in which the evidence rebutting good character could be used, and the ways in which it must not be used. Orders 1. In the event, I informed the parties that leave was granted to the Crown Prosecutor, but only if cross-examination occurred in a restricted way, and in general concordance with my determination. 2. My actual determination was as follows: Separately, I grant leave to the Crown Prosecutor to cross-examine the accused as follows: 1. Some years ago; 2. As part of a dispute with another young woman; 3. You pressed a small tree branch against her forehead; 4. And made a threat against her and her family; 5. To the extent that you said yesterday in-chief what appears at page 361, that was not correct. … The following aspects pertain: (a) Those questions should be asked immediately, not at the end of cross-examination. (b) I shall give my reasons later. (c) Questions of a case in-reply are another matter that we will come to as necessary. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 August 2016