Azzi v R

In Booth each member of the Court, (Street CJ, O'Brien CJ of Cr D and Lee J) gave concurring but separate judgments. It will suffice for present purposes to quote the following passages from the judgment of Lee J: "The direction which practice requires a judge to give when an accomplice gives evidence for the Crown is intended to achieve a particular purpose: namely to bring to the attention of the jury that the evidence of such a witness may be in a different position from the point of view of reliability from that of other witnesses. The trial judge is expected to bring home to the jury that it is dangerous to convict on the uncorroborated evidence of such a witness; and this direction has the consequence that the witness is, in a real sense, held up as a witness whose testimony is suspect. It is left to the jury to appraise the evidence of the witness in the light of the warning given. In my opinion the requirement that the judge give the direction and that the jury then assesses the witness' evidence in the light of that warning provides the justification for the admissibility into evidence of evidence showing the position of the accomplice vis-à-vis the Crown which is the party calling him. In order for the jury to assess the degree of danger involved in evaluating his uncorroborated testimony, it is necessary for the Crown to disclose whether the witness has for instance been offered or granted a pardon, or whether it is not intended to proceed against him, or whether in fact he has been charged with an offence arising out of or related to the matter with which the accused is charged. Such evidence, in my opinion, goes to the witness' status as an accomplice, and that is a relevant matter for the jury to consider. It is particularly relevant in regard to the extent to which the evidence of that accomplice can be called upon to found a conviction of the accused." [8 A Crim R, 86,87]

We agree, with respect, with that analysis of Lee J. We are not persuaded that those responsible for the drafting of section 102 of the Evidence Act intended simply to abrogate the principles thus explained. The evidence is not tendered as evidence relevant only to a witness's credibility because it is tendered pursuant to the Crown's duty of fairness to the accused to lay out before the jury the status of the witness without that status being dragged out in cross-examination in a manner which might not be favourable to the interests of the accused. Section 9(1) provides that the Act does not affect the operation of a principle or rule of common law in relation to evidence except in so far as the Act provides otherwise expressly or by necessary implication. Section 102 does not provide otherwise. There are other forms of evidence in chief which might, on one approach, be said to relate to credibility, while not being excluded by s 102. It is customary to obtain the address and occupation of witnesses at the start of the examination in chief. Strictly speaking the address and occupation of a particular witness at the time of the trial is irrelevant to any issue, though either an address or an occupation at the time of the events in issue can be. The evidence is received simply in order to locate the witness in society. Similarly, the qualifications of an expert do not go to an issue, and, if there is no objection to the witness's expertise, can only be relevant to the reliability of the opinions or other evidence to which the witness testifies. Yet s 102 cannot be construed to render that kind of evidence inadmissible when for centuries it has been admissible. We reject, therefore, the proposition basal to paragraph (a), as did this Court in R v Gonzales-Betes [2001] NSWCCA 226. ... 39I am not persuaded that the decision in Chen is authority for the approach to the construction of s 101A in the way contended for by the Crown on the appeal, or that the Crown was obliged to lead evidence of the sugar lie in discharge of any duty of fairness over the objection of defence counsel.

Was the sugar lie properly admitted as part of the coincidence evidence led by the Crown? 40Counsel for the appellant conceded that there was no error in the admission of the appellant's possession of the various restricted substances, the methylamphetamine and the scales with traces of heroin and cocaine, as coincidence evidence. He accepted that those separate acts of possession were properly considered by the trial judge to be a series of related events under s 98(1) and that the tests for admissibility in s 98(1)(b) and s 101 were satisfied for the reasons set out in [21] above. He also conceded that there was no error in the appellant's plea of guilty in the Local Court being admitted to prove that he was in knowing possession of the methylamphetamine at that time, contrary to the appellant's assertion to police at the time of the search that he believed the powder was "probably sugar". Counsel's challenge in the proposed second ground of appeal was limited to the sugar lie being relied upon by the Crown on the appeal as part of the coincidence evidence admitted at trial in order to meet the error contended for in the first ground of appeal. 41I do not understand it to be submitted that a statement or verbal utterance cannot, in appropriate circumstances, be an "event" or "occurrence" for the purposes of the application of s 98 of the Evidence Act. Rather, it was submitted that the telling of the sugar lie in this case was not an event the occurrence of which was relevant to whether the appellant was in possession of the heroin (the purpose for which his possession of the other items was admitted as coincidence evidence) because, what he said about the methylamphetamine (that it was sugar or probably sugar) was not relevantly similar to what he said about the other items in his possession (in fact it was markedly dissimilar from those statements since they constituted admissions that he was in possession of those items) and, for that reason, the sugar lie could not bear upon the probability that he was in possession of the heroin and, for that reason, should not have been admitted as coincidence evidence under s 98. 42Even if that were not the precise analysis of the operation of s 98 contended for by the appellant's counsel as it applied to the sugar lie, in my view it is the correct analysis and in admitting the sugar lie as part of the coincidence evidence his Honour was in error. That being the case, the Crown submission that s 108A and s 108B have no operation because the sugar lie was part of the coincidence evidence and not relevant only to the appellant's credibility is rejected. That said, it appears from the Crown's closing submissions, and his Honour's summing up, that the evidence was treated as going only to the accused's credit in any event although, as I have noted, no consideration was given to s 101A of the Evidence Act in that connection. 43In the somewhat unusual circumstances of this case, I would grant leave to the appellant to file the additional ground of appeal. I would also grant leave under Rule 4. Although I am persuaded that the error contended for in the second ground of appeal is made out, for the reasons which follow, because the evidence was properly treated (or admitted) as credibility evidence, no miscarriage of justice has resulted and the appeal should be dismissed.

Was the evidence properly admitted in compliance with s 108 of the Evidence Act? 44Division 2 of Part 3.7 concerns credibility evidence adduced in relation to witnesses in the proceedings. As the appellant did not give evidence, Division 2 has no application to the appeal. 45Division 3 of Part 3.7 concerns credibility evidence of persons who are not witnesses but who have made out of court representations that have been admitted into evidence. 46Section 108A provides that "credibility evidence" about such persons is not admissible unless the evidence could "substantially affect the assessment of the person's credibility". Section 108B imposes further restrictions where person who made the representation is the accused. 108A Admissibility of evidence of credibility of person who has made a previous representation (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. 108B Further protections: previous representations of an accused who is not a witness (1) This section applies only in a criminal proceeding and so applies in addition to section 108A. (2) If the person referred to in that section is a defendant, the credibility evidence is not admissible unless the court gives leave. (3) Despite subsection (2), leave is not required if the evidence is about whether the defendant: (a) is biased or has a motive to be untruthful, or (b) is, or was, unable to be aware of or recall matters to which his or her previous representation relates, or (c) has made a prior inconsistent statement. (4) The prosecution must not be given leave under subsection (2) unless evidence adduced by the defendant has been admitted that: (a) tends to prove that a witness called by the prosecution has a tendency to be untruthful, and (b) is relevant solely or mainly to the witness's credibility. (5) A reference in subsection (4) to evidence does not include a reference to evidence of conduct in relation to: (a) the events in relation to which the defendant is being prosecuted, or (b) the investigation of the offence for which the defendant is being prosecuted. (6) Another defendant must not be given leave under subsection (2) unless the previous representation of the defendant that has been admitted includes evidence adverse to the defendant seeking leave. 47The appellant's counsel analysed the operation of s 108A as it concerns the sugar lie in the following way. He submitted that the previous representation with which the operation of the section is concerned in this case, is the appellant's denial that he was in possession of the heroin, led through the police officer. Counsel submitted that credibility evidence about the appellant was not admissible unless it was capable of substantially effecting the jury's assessment of his credibility. Although not openly conceding that the sugar lie satisfied that test (but proceeding on the assumption that the Court would take the view that it was), counsel submitted that it did not satisfy the further exclusionary provision in s 108B and, for that reason, the Crown should not have been permitted to use the evidence to attack the accused's credit. For my part, I am satisfied the sugar lie was capable of substantially affecting the jury's assessment of the appellant's credibility generally and, in particular, the weight which might be given to his denial that he was in possession of the heroin. 48Counsel then submitted that none of the exceptions in s 108B(3) applied and, accordingly, it was necessary for the Crown to be granted leave to adduce the credibility evidence. He further submitted that since leave was not sought (and if sought would not have been granted under s 108B(4)) the evidence should not have been admitted. He submitted that the accused's lie about the methylamphetamine being sugar, or probably sugar, is not inconsistent with his denying any knowledge of the heroin and for that reason the exception in s 108B(3)(c) is not engaged. 49The Crown submitted that it was the sugar lie, proved to be such by the appellant's admission that he was in possession of the methylamphetamine implicit in his plea of guilty in the Local Court, that is the evidence about which the accused made a prior inconsistent statement as provided for in s 108(3)(c), and leave was not required for the admission of the sugar lie for that reason. 50In my view, the sugar lie is the evidence "about whether the accused made a prior inconsistent statement" (namely his denial that he was in possession of the heroin) as provided for in s 108B(3)(c) and for that reason leave was not required for the admission of the evidence. 51In the result, I am satisfied that the sugar lie was properly admitted as credibility evidence and available to be used by the jury to assess the credibility of the appellant's denials to police that he was in knowing possession of the heroin. I would reject the first ground of appeal. 52The orders I propose are as follow:

1. Leave be granted to permit the appellant to file an amended notice of appeal.
2. The appeal against conviction is dismissed.

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