R v Friedman[2011] QSCPR 1

SUPREME COURT OF QUEENSLAND

1. [1]
   Samuel Friedman is charged with murder.  The man who died was Richard Doherty.  He was shot in the chest at the Gold Coast about 6:00 am on 15 August 2009.  Another man with him, Benjamin Matthews, was also shot and wounded in the left upper arm, apparently by the same bullet.  They were next to a blue car when the shooting occurred.  Unsurprisingly, the background to the shooting included evidence of illegal drug transactions.  The issue to be decided at this stage is whether statements made by a now dead witness, Rachel Bertomeu, should be admitted in evidence at Mr Friedman’s trial. 

Background Facts

2. [2]
   There is evidence that, at the time of the shooting, Mr Friedman was in the front passenger seat of the blue car.  Rachel Bertomeu was in the driver’s seat.  It is her statements that are the subject of this application.  Iestyn Brazell-Rees was in the back seat and he can prove that Ms Bertomeu was driving and that Mr Friedman was in the front passenger seat.  At the time of the shooting, however, he was asleep.  He heard a bang which woke him up.  He had an idea that it was a gunshot and can say that Mr Friedman had shown him a silver 9 mm handgun a day or two before.^[1]  He cannot, however, identify who fired the shot.  He also says he found a 9 mm brass casing in the car.
3. [3]
   An empty 9 mm Steyr gun cartridge was located by police in the rear footwell of the vehicle.  It was tested and found to match a silver 9 mm handgun found buried in a park whose location was identified from information supplied by Ms Bertomeu.  She said she accompanied Mr Friedman there.  A bullet was found near where the car was at the time of the shot which also matches the handgun.  Gunshot residue was detected on the interior of the passenger side of the vehicle. 
4. [4]
   Mr Matthews, the man wounded at the time Mr Doherty died, is now dead.  He has not given a statement nor been examined as a witness. 
5. [5]
   Ms Bertomeu is also dead, killed in an unrelated motor vehicle accident.  Before she died she had given two statements, had previously been interviewed by police and was subsequently examined and cross-examined at a committal hearing. 

The nature of Ms Bertomeu’s evidence

6. [6]
   The question, as I have already indicated, is whether Ms Bertomeu’s evidence at the committal hearing should be excluded from the trial.  The prosecution wishes to tender it pursuant to s 111 of the Justices Act 1886.  It is not contentious that it is prima facie admissible under that section.  The defence argues, however, that it should be excluded in the exercise of my discretion to exclude evidence that, although strictly admissible, would operate unfairly against the accused.  The unfairness said to exist includes the fact that Ms Bertomeu said in her first statement that the shot was fired by the deceased, Mr Doherty, but, a month later, changed her story to assert that the defendant, Mr Friedman, fired the shot. 
7. [7]
   She was also a drug addict, with a lengthy criminal history including the use of a variety of legal and illegal drugs.  She admitted that she suffered from “the worst” memory.^[2]  She had been offered an undertaking by the Attorney-General that any evidence by her in the proceedings against Mr Friedman would not be used in evidence against her.  She had been concerned that she might be charged in respect of Mr Doherty’s death and was offered this inducement to encourage her to give evidence. 
8. [8]
   Her explanation for her change in evidence was that, initially, she wanted to provide Mr Friedman with a defence of self-defence but then, after she realised she could get into trouble, she changed her story “to fix up the lies” from her first statement.^[3]  Hers is the only evidence that directly implicates Mr Friedman as the shooter.  These factual issues were canvassed extensively at the committal hearing, including Ms Bertomeu’s changed versions and her reasons for changing them, but that evidence was not made the subject of a structured attack as to its credibility by counsel then appearing.  Nor would one expect such an attack to have been made then when one considers the normally different objects of cross-examination at a committal hearing compared to a trial.  Such an attack is likely to have occurred had she been able to be cross-examined at a trial. 
9. [9]
   The facts relevant to the attacks that could be made against her evidence will, however, be available to the jury from what was said at the committal hearing including the cross-examination.  It includes her changes in her versions of events and reasons for those changes, her criminal and medical history, the indemnity offered to her by the Attorney-General and her own presence at the scene of the crime and her concerns that she might be charged.  It would also be open to the defence to seek to have tendered her previous inconsistent statements to police. 
10. [10]
    Both the examination and cross-examination were extensive.  Although the cross-examination was not designed to put the defence case, or necessarily to attack Ms Bertomeu’s evidence, it did test its content and highlighted some of its inadequacies and inconsistencies with her previous statements as well as some of her personal history, her history of drug use, her criminal history and her memory problems particularly as they affected the events on the night in question.  She gave responsive and detailed answers to the questions.  Some of that evidence had been corroborated already, such as by the discovery of the location of the weapon in the place to which she took police officers who found it.  
11. [11]
    She did not appear to gloss over her own personal history and also gave apparently rational responses in explanation for the changes in the versions of events she told police.^[4]  It may also be relevant to her credibility that she said she had been threatened by a third person for her willingness to give evidence against the defendant, something which was apparently confirmed by an event during the committal hearing.^[5]
12. [12]
    From the evidence it seems possible to me to ascertain both the significance of what she had to say about the relevant events as well as the strength of the legitimate attacks that could be made about her evidence from both her history of drug use, particularly during that night, and the differing versions of the events she had given to police. 

The contending submissions

13. [13]
    The prosecution argument referred to expressions of principle including the comments of Gibbs J in Driscoll v The Queen^[6] that the exercise of the discretion to exclude evidence is called for particularly “if the evidence has little or no weight, but may be gravely prejudicial to the accused.”
14. [14]
    The prejudice to the accused must be additional to or distinct from the evidence tending to establish guilt.^[7]  The discretion to exclude in circumstances such as these is also one that should be exercised with great restraint.  As Lord Griffiths said in Scott v The Queen: Barnes v The Queen:^[8]

“The mere fact that the deponent will not be available for cross-examination is obviously an insufficient ground for excluding the deposition for that is a feature common to the admission of all depositions which must have been contemplated and accepted by the legislature when it gave statutory sanction to their admission in evidence.  If the courts are too ready to exclude the deposition of a deceased witness it may well place the lives of witnesses at risk particularly in a case where only one witness has been courageous enough to give evidence against the accused or only one witness has had the opportunity to identify the accused.  It will of course be necessary in every case to warn the jury that they have not had the benefit of hearing the evidence of the deponent tested in cross-examination and to take that into consideration when considering how far they can safely rely on the evidence in the deposition.  No doubt in many cases it will be appropriate for a judge to develop this warning by pointing out particular features of the evidence in the deposition which conflict with other evidence and which could have been explored in cross-examination: but no rules can usefully be laid down to control the detail to which a judge should descend in the individual case.  In an identification case it will in addition be necessary to give the appropriate warning of the danger of identification evidence.  The deposition must of course be scrutinised by the judge to ensure that it does not contain inadmissible matters such as hearsay or matter that is prejudicial rather than probative and any such material should be excluded from the deposition before it is read to the jury.

Provided these precautions are taken it is only in rare circumstances that it would be right to exercise the discretion to exclude the deposition.  Those circumstances will arise when the judge is satisfied that it will be unsafe for the jury to rely upon the evidence in the deposition.  It will be unwise to attempt to define or forecast in more particular terms the nature of such circumstances.  This much however can be said that neither the inability to cross-examine, nor the fact that the deposition contains the only evidence against the accused, nor the fact that it is identification evidence will of itself be sufficient to justify the exercise of the discretion.”

15. [15]
    The prosecution also relied upon the decision of Fryberg J in R v Schuurs and Semyraha.^[9]  In that case the prosecution sought to rely upon depositions of a dead witness who had provided a number of statements with inconsistent evidence and had been cross-examined at the committal proceedings about matters affecting the reliability of his memory and his identification evidence among other things.  There was other evidence relevant to the guilt of the accused which included a confession and DNA evidence tending to confirm his presence at the deceased’s house and in his car.  His Honour said:

“[30] Fourth, because the argument in the present case focuses on the combined effect of the alleged unreliability of the evidence and the inability to cross-examine the witness before the jury, it is unnecessary to consider the debate about whether mere unreliability, as perceived by the judge, is sufficient to justify the exercise of the discretion.  One dictum is, however, worth citing:

‘The approach of the courts has been and should be one with a very strong predisposition to the view that, questions of fact and credibility being for the jury and the jury being an institution in whose capacity and integrity confidence is reposed by the courts, evidence which is probative should go to the jury despite its infirmities, accompanied by the trial judge’s directions concerning the considerations, both general and particular, affecting its reliability, including of course in an appropriate case the matter of corroboration.  Trial judges must be at pains to ensure that the discretion to exclude admissible evidence on the ground of unfairness is not used (contrary to Doney) to withdraw a case from the jury on the footing that any conviction would be unsafe or unsatisfactory.’

At the same time is [sic] must be remembered that ‘unreliability is an important aspect of the unfairness discretion’ – it ‘may be a touchstone of unfairness’.

[31] Finally, there is the obvious point that there will be many factual situations where the two discretions will overlap.  In Rozenes v Beljajev, the court cited the example of inability to cross-examine the deceased maker of an admissible statement as such a case.

Unfairness

[32] I turn now to an evaluation of the possible unfairness in the use of Mr Schuurs’ evidence. The only manifestation of unfairness argued by counsel was the risk of an unfair trial.  The first point to be made is that whatever unreliability exists is patent; there will be no inhibition on drawing a jury’s attention to it.  Most of the matters of unreliability have in fact been the subject of cross-examination at committal, and that cross-examination will be read to the jury if the evidence is not excluded.  Of course, one cannot deny the possibility that cross-examination might have produced more benefits for the defence.  I accept the point that cross-examination conducted at committal has different aims and uses different methods from that conducted at trial.  Nevertheless, nothing much springs to mind on reading the depositions.  Indeed, there is some evidence that further cross-examination would be adverse to the interests of the accused.  There is no suggestion that the second statement might contain deliberate fabrications and little scope for confusion.  Its use would not in my judgment make the trial unfair.”

16. [16]
    In reaching his conclusion about the admissibility of the depositions his Honour went on to say:

“[41]It is not clear that cases where there is an inability to cross-examine the maker of a written statement are within the ambit of the discretion. Moreover, the view has been expressed that in exercising the discretion, issues of credit are not to be taken into account in assessing the probative weight of evidence.  In R v Hasler, ex parte Attorney-General, Connolly J said, ‘The suggestion that a judge ruling whether evidence should be admitted should consider whether it is true or false cannot be supported: The King v Lee’.  In the present case, I need not resolve any of these issues.  I am prepared to assume that it is open to me to exercise the discretion in the present circumstances.

[42]I am satisfied that it is not appropriate to exercise the discretion unless the accused establish that the probative value of the impugned evidence is very low and also that the collateral prejudice to them is substantial.  It is not my function simply to weigh up the probative value of the evidence against its prejudicial effect, according to some personal sense of fairness.  As Thomas J observed, ‘The use of this discretion is not a loose balancing exercise.’

[43]In the present case, I do not think the probative value of the evidence of Mr Schuurs is so slight as to enliven the discretion.  True, it can be criticised; but in my judgment, notwithstanding those criticisms, it is not possible to say that it lacks probative value to the requisite extent. Moreover, the prejudicial effect resulting from having the evidence before the jury without cross-examination of Mr Schuurs is lessened by the cross-examination which took place at committal and the videotape of the identification process.  Even if the discretion were enlivened, I do not think that the forensic disadvantage would outweigh the probative value of the evidence or makes its reception unfair.”

17. [17]
    Mr Lynch, for the defendant, submitted that one of the distinctive features of this case was that Ms Bertomeu’s evidence was the only direct evidence linking the weapon which appears to have killed the deceased to his client. He submitted that the absence of the opportunity to cross-examine Ms Bertomeu, coupled with the deficiencies apparent on the face of her evidence, to which I have already referred, were such as to render it not only of little or no weight but also gravely prejudicial to the defendant in the sense that there was a real risk that the evidence would be misused by the jury.^[10] 
18. [18]
    He also drew my attention to a passage in the reasons of Davies JA in R v Lester.^[11]  His Honour drew attention there to the lack of any suggestion that there were any internal inconsistencies in evidence sought to be tendered by a deceased witness in her statement or the transcript of her evidence or between the statement and the evidence transcribed as relevant to the decision whether or not to exclude her evidence.  That approach seems to be me to be potentially relevant but where, as here, there have been apparently rational explanations given for inconsistencies in the versions given by a witness it seems to me to be more likely to be a matter for the jury to decide the extent to which it can rely on the evidence. 
19. [19]
    Mr Lynch also referred me to the decision of the High Court in Ugle v The Queen^[12] where a trial judge excluded a statement by a complainant in a rape trial who then lived in France and did not intend to return to Australia to give evidence.   In passing the court interpolated their view that the trial judge correctly excluded the statement saying that “it could only be in a very exceptional case that a trial judge would fail to exclude such evidence on the basis that its prejudicial effect would outweigh its probative value where it was sought to be tendered on the trial of a matter raising a ‘defence’ of consent.”^[13]  That situation appears to me to be very different from this one where the witness has died but has also given evidence at committal proceedings including under cross-examination.
20. [20]
    It cannot be said here that Ms Bertomeu’s evidence at the committal hearing has little or no weight.  It is direct evidence of her observations that Mr Friedman shot the deceased.  It may be criticised legitimately for the reasons canvassed by Mr Lynch relating to the inconsistencies in her previous statements, the possible effects of drugs on her memory and her self-interest in not being implicated in the shooting itself, enhanced by the Attorney-General’s grant of immunity to her.  These are all matters which would have required a strong warning about her evidence had she given it while alive and which I would expect would be given by the trial judge in respect of the admissibility of the deposition. 
21. [21]
    The cross-examination at the committal hearing canvassed those issues in such a way as to make clear the legitimate grounds for criticism of the evidence.  Ms Bertomeu’s responses, while admitting her previous inconsistent statement, gave apparently rational excuses for her changed story and remained consistent over a lengthy period when she was in the witness box. 
22. [22]
    In the circumstances, the issues seem to me to be ones that should be determined by the jury on the available evidence.  On the assumption that an appropriate direction is given by the trial judge I do not perceive a real risk that the evidence of the depositions would be misused by the jury. 
23. [23]
    The absence of other direct evidence linking the shooting to the defendant is an important consideration but also highlights the significance of Ms Bertomeu’s evidence.  Where it is otherwise relevant, admissible and apparently rationally expressed it does not seem to me that it can be said that it has little or no weight.  The matters of prejudice to the accused can be dealt with by an appropriate direction at the trial particularly because they have been addressed to a significant extent by the cross-examination of Ms Bertomeu at the committal hearing. 

Ruling

24. [24]
    Accordingly, my ruling is that the transcription of the record of evidence given by Rachel Anne Bertomeu before the Magistrates Court at Southport on 30 August 2010 should not be excluded from evidence at the trial of the defendant.