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Public Prosecutor v Le Blanc [2005] VUSC 97; CRC 033 2005 (9 August 2005)

IN THE SUPREME COURT
OF THE REPUBLIC OF VANUATU
(Criminal Jurisdiction)

Criminal Case No. 33 of 2005

PUBLIC PROSECUTOR

–v-

VERONIQUE LE BLANC

Coram: Justice Treston

Mr. Kalmet for Public Prosecutor
Mr. Bartels for Accused

Date of Hearing: 8 & 9 August 2005
Date of Oral Ruling: 09 August 2005

ORAL RULING ON VOIR DIRE

This is a ruling on an application by the prosecution to admit similar fact evidence.

Prior to the calling of evidence from the last 15 witnesses in this trial, the prosecution sought a ruling from the Court that it could adduce similar fact evidence from witnesses who in the main were under the categories of former employees, friends and current employees of the deceased and the accused whose names are set out in the folder of translated witness statements. Those witnesses were Brenda Tari, Kalfau Collin, Cliff Fred, Joe Simeon, Leikar Charlie, Naio Joseph, Shiela Malep, Shelly Toara, Margarett Mahit, Corporal Gerard Malere, Tagliaforro Genevieve, Willie Tovovor, Marie Herromanly, Tony Bruce and Jomai John.

I am grateful for the assistance from counsel because, prior to the matter proceeding further, it was agreed that the Court with the assistance of counsel would carefully and systematically analyze the evidence contained in the briefs of those named witnesses to ascertain as a preliminary matter, whether or not the evidence as put forward in their briefs was first, admissible or second, related to similar fact evidence that could be relied upon by the prosecution. As I say the Court and counsel in open Court in the presence of the accused spent some time in carefully analyzing all of the statements witness by witness, paragraph by paragraph and by agreement both with the prosecution and the defence, it was finally conceded and submitted that the only cogent evidence by way of similar fact evidence could come from the witnesses Leikar Charlie and Shelly Toara. The remaining evidence was either inadmissible, hearsay or not directly relevant to similar fact evidence. Detailed notations were made for the reasons given by the Court in relation to the various witnesses and the prosecution accepted that the two witnesses who I have named were the only ones from whom similar fact evidence could possibly adduced were it appropriate.

The prosecution commenced to make submissions as to the similar fact aspect but on reflection the Court considered that, in fairness to the accused, there should be a voire dire hearing in relation to the two relevant witnesses, Leikar Charlie and Shelly Toara. That was, of course, as a matter of common sense, the appropriate way to deal with the matter because the assertions made in the statements were untested and the accused had not had the opportunity of cross-examining the witnesses nor if the matter had proceeded simply on submissions would the accused have had the opportunity in a voir dire hearing to put her side of events. And in fairness to the accused, of course, that is an essential factor because justice requires that both parties be given equal opportunities to present the evidence and to test it respectively before a ruling can be made. Accordingly, a voir dire took place.

Evidence was given by the two witnesses named and, as far as Leikar Charlie and Shelly Toara were concerned, both witnesses referred to an incident that seems to have occurred some indeterminate time in 1993 near Parliament house in Port Vila, being an incident between the accused and the deceased. I hasten to say right at the start that neither of those witnesses were present and actually witnessed the event at Parliament House. Both of them were relating a conversation which they had had with the accused. Both of them gave evidence about what the accused had said to them about the incident and consequently there was no evidence directly from either of them as to the incident itself.

Leikar Charlie, who was working as a house-girl for the accused and the deceased for 3 months, again sometime in 2003, said that from time to time she and the accused has had conversations and in relation to an incident near Parliament House, the accused had come back to the matrimonial home and said to her that she had taken an iron bar and wanted to hit the deceased with it but he moved aside so she missed him and hit the window of the truck. Apparently, there had been an argument between the pair as to the possession of a truck and the keys of it. Leikar Charlie went on further to say that the accused told her that she had lifted the iron bar again and hit the accused on the right side of his skull. The witness said that the accused had come back to the matrimonial home had told the story and had then left. When the deceased came back to the house she saw blood on his forearm and on the back of his neck. She said something in cross-examination about seeing blood running down the back of the deceased's neck.

The witness Shelly Toara lives as No. 2 area, Port Vila and is a housewife and manager of a Kava bar, which she runs. She had become acquainted with the accused as a regular customer and from time to time had conversations with her. She also gave evidence about what the accused had told her about what had happened at or near Parliament House. She said that the accused said that she had quarreled with her husband and that the accused had smashed the front glass of the big truck. She was mad with her husband, the deceased, because he hadn't given money to her and she also said that the accused had told her that she hit her husband and that her husband was admitted to hospital. In cross-examination, she said that she couldn't remember the accused saying anything about hitting the deceased on the head.

At the voir dire hearing, the accused, as is her right, elected to give evidence. She denied saying to either witness that she had hit the deceased on the head. She remembered seeing blood on the forearm of the deceased but did not remember seeing blood on the back of his neck or his head. She said that he got damage on his hand or forearm area because they had a quarrel over a key and were tugging at it and she had scratched him with her long nails which the first witness agreed the accused had at that time. The accused said that she had never told the second witness that her husband had been admitted to hospital.

The question then is whether or not, in view of all of the evidence, including that of the accused, the evidence as to the incident at Parliament House at some indeterminate time in 2003, should be admitted.

The prosecution submitted that a consideration should include whether the statements were hearsay. The defence accepted that, as the conversations took place between the accused herself and the witnesses, it must be regarded as an exception to the hearsay rule, and that point was taken no further. But as to the similar fact evidence aspect, the prosecution submitted that the facts as to the Parliament House matter, should be admitted as similar fact because they went to a fact in issue namely the identity of the perpetrator of the crime with which the accused is presently charged and which she presently faces. Authorities were referred to and the prosecution submitted that there should be a striking similarity of facts between what had occurred on this occasion and what had occurred at Parliament House and that the striking similar facts has outlined in the Department of Public Prosecutor v P- [1991] 2 AC 447 (HL) were that this accused had used a weapon to strike the deceased on a previous occasion. It was also submitted that there had also been an argument or quarrel between the accused and the deceased on the earlier occasion and that some of the evidence on this occasion indicated that there might have been a family dispute. It was submitted that the facts of the two incidents were strikingly similar.

On the other hand, the defence argued that on the basis of authorities which were quoted including Makin v The Attorney General for New South Wales [1894] A.C. 57, Pfennig v Queen (1995) 102 C. L. R 461 and Hoch v Queen [1988] HCA 50; [1988] 165 C.L.R. 292 the evidence should not be admitted. It was submitted that under the principles in Pfennig's case the judge's role should be the exercise of discretion rather than an application of a principle. It was argued that there was some doubt cast upon the Parliament House incident because it could not tied down specifically in time in 2003 and although there were some consistencies in the account given by the two witnesses, there were also matters which were vehemently denied by the accused in her evidence. The evidence of the witness Shelly Toara was such that she did not give evidence about being told by the accused that the accused has hit Mr. Le Blanc on the head and that her evidence was somewhat cast in doubt because of the reference to the hospital made on this occasion when it had never been made before. The defence submitted that the evidence was vague and that the prejudicial effect far outweighed any probative value. It was, the defence submitted, an attempt by the prosecution to show that the earlier assault perpetrated on Mr. Le Blanc sometime in 2003 was relevant to this trial simply to find a defendant rather than to adduce similar fact evidence. It was submitted by the defence that some parts of the conversation were admitted by the accused, but the salient parts were denied and that there had been no conviction to support the earlier incident and no complaint had been brought and that the evidence of these two witnesses alone would have been insufficient to obtain a conviction had the matter even proceeded to Court previously.

In reply, the prosecutor submitted that the evidence could be used simply as a circumstantial fact rather than anything else and the authority of Hoch v Queen (above) was referred to to support that proposition.

As far as similar fact evidence in general is concerned, a helpful quote from the High Court in New Zealand in an Auckland trial in Queen v Narayan T002902 was this. Her Honour said: -

"The rule is not so much a separate doctrine, nor an exception to other rules of evidence. It is rather a more sophisticated manifestation of the balancing of probative value and prejudicial effect which is at the heart of the discretion to admit or exclude evidence."

Of course the principle was earlier developed in the case of Boardman v DPP [1975] AC 421 in the House of Lords where there was reference to similar fact evidence in terms of admissibility of it and a useful principle in relation to the exercise of a judicial discretion, which I accept must be applied here, is that, and I quote "when in doubt exclude". Such an approach has been referred to in cases such as R v Bracewell [1978] 68 Cr App R44, R v Holloway [1980] 1 NZLR 315, Sutton v R [1984] HCA 5; (1984) 152 CLR 528 and more recently in the case of R v M (1999) 16 CRNZ 526 where Giles J stated: -

"I sense a general tightening up of the circumstances in which similar fact evidence can be admitted - deservedly so because of the inherent prejudice and difficulties such evidence can produce."

I refer to those authorities by way of general comment but I make these specific findings in this case as follows. The similar fact evidence here is sought to be adduced on the basis that on previous statements made by her the accused acknowledged using a weapon and striking the deceased on the head. It seems from the evidence in this trial, that exhibit 4, the lump of wood, was used to strike the deceased on the head causing, according to the medical evidence, his demise. I make these observations, however, in relation to the quality and admissibility of the evidence. As counsel for the defence has said, this was a matter where the accused was never cautioned nor had legal advice when she made the statements. I say that with a little diffidence because clearly the statements were made by the accused to the two witnesses involved on a voluntarily basis.

However, more importantly, in evidence the accused in this case has denied making statements giving rise to the similar facts. That in fact puts the matter in the balance and it is my view that when a matter such as this is put in the balance, any discretion should be exercised in favour of the accused.

In addition, the event was never subject to a complaint to police at the time. No charge has eventuated from it nor was the matter put before the Court for hearing and it was not tested in a forum such as this. So it was not proven criminal behaviour but is simply previous behaviour rather than a proven crime.

Of course, as the prosecution has said, character in relation to similar fact evidence refers to prior convictions conduct or occasions other than that currently charged. So generally, I am not saying that such occurrences or behaviour cannot form part of similar fact evidence which may be adduced in appropriate circumstances.

Significantly also in relation to the evidence given by the witnesses, they were not witnesses of fact in that they did not see the actual event. All they knew about the matter was that which was related to them by the accused and she now denies making those statements and I have given my view about the way the discretion should be exercised in those circumstances.

In addition the witness Mrs. Toara conceded in cross-examination that she could not remember the accused saying anything about hitting the deceased in the head in the Parliamentary House area. All the prosecution are relying upon is a theory that they have about who caused the death. There is no direct evidence.

Certainly, the accused was there but she herself was injured and it is my view that a theory or speculation cannot establish this accused being involved in the sort of action that would be necessary for similar fact evidence to be admitted.

It is my view that with the inherent difficulties of the witnesses not giving direct evidence of fact but merely relating what had been told to them by the accused and her denying it places the evidence at some risk.

In addition, the evidence of the witnesses does not in my view show any propensity for the accused to commit similar offences and one previous matter such as that at Parliament House does not in my view establish a pattern of offending. These does not appear to me to be any underlying unity in the behaviour.

I accept the prosecution submission that similar fact evidence such as this may be adduced as a circumstantial fact in an appropriate circumstances but I am not satisfied that these circumstances are the appropriate ones for the similar fact evidence as alleged to be adduced and I have given detailed reasons for that already.

My view is this, the prejudicial effect of the evidence far exceeds the probative value of it in these circumstances and accordingly I rule that the evidence of the witnesses Leikar Charlie and Shelly Toara is inadmissible.

Dated AT PORT VILA, this 09^th Day of August 2005

BY THE COURT

P. I. TRESTON
Judge