CRIMINAL LAW - evidence - whether prior inconsistent statement admissible as exception to credibility rule - evidence admissible under exception in s 106 Evidence Act - CRIMINAL LAW - evidence - whether electronically recorded interview with police should go to the jury room during deliberations - rule in Gately v The Queen - [2012] NSWSC 1160 - NSWSC 2012 case summary

Supreme Court of NSW|2012-09-18|Before: Campbell J

Judgment 1MFI 21 is a DVD containing excerpts from Mr. Moody's electronically recorded interview with the police on 1st May 2011. In an earlier ruling, I gave the Crown leave to cross-examine Mr. Moody under s.38 Evidence Act 1995 (NSW) on the basis, inter alia, that Mr. Moody made a prior inconsistent statement: R. v. Michael Anthony Ryan (No. 2) [2012] NSWSC 1034. 2MFI 21 is that statement. 3The learned Crown Prosecutor now tenders MFI 21, and Mr. Waterstreet of Counsel, for the defence, objects. His objections are twofold. First, Mr. Waterstreet argues that since amendments to the Evidence Act made by the Evidence Amendment Act 2007 (NSW) - which commenced on the 1st of January 2009 and implemented the recommendations contained in ALRC 102 - a prior inconsistent statement is only admissible if it falls within an exception to the credibility rule established by s.102 Evidence Act, and in this case none apply. Secondly, Mr. Waterstreet argues in the alternative that R. v. NZ (2005) 63 NSWLR 628 and Gately v. The Queen (2007) 232 CLR 208 created a particular rule about audio-visual evidence which catches MFI 21.

4It is necessary to recapitulate some evidence set out in my previous ruling. 5Mr. Moody gave evidence about the incident in the carpark from 409.20T - 411.5T. At 410T.20 - 411.5T the following evidence was given in the presence of the jury: Q. What did you see happen between the man coming from Fitzgerald Street and Michael Ryan? A. They started to fight. Q. When you say they started to fight who hit who? WATERSTREET: Assuming that your Honour. CROWN PROSECUTOR: I will do it another way your Honour. HIS HONOUR: Thank you. CROWN PROSECUTOR Q. What did you see happen? A. He came towards Michael and Michael had come towards him and they put their fists up like they were going to fight. Q. Did you see either man throw a punch? A. I think Michael threw a jab or Q. Did you see the other man throw a punch? A. No. Q. You think you saw Michael throw a jab? A. Yes. Q. Did you see the jab connect with the other man? A. I can't remember but HIS HONOUR Q. Don't guess. A. I am unsure 6In the transcript of MFI 21 the following appears: Q.386OK. What happens? A.Michael hit him once and he started walkin', the other guy started walkin' backwards. ... Q.388What do you see Michael Ryan actually do? A.Hit him with his .... I don't even know if it was his left or right. Q.389OK. Was it a punch or was it a ... A.Yeah, he punched him. Q.394All right. Does it connect with the fellow. A.Yeah. Q.395OK. Where does it hit him? A.In the face. Q.396All right. What do you, what do you see then? A.The other guy started walkin' backwards and it sort of moved up .... jumpin' around ... Q.411OK. So they come together again. Do they? A.Yeah. Q.412What are they doing, or what do you see? A.They sort of come back together, and Michael's hit him again. ... Q.417Where did he hit him? A. In the face. ... Q.427OK. A.And then the guy just fell backwards ... Q.429OK. Did you see that take place? A.Yeah I seen him fall. Q.433OK. A.He wasn't knocked out when he fell. Q.434OK A.But he's fallen, and hit his head either on the gutter or the road. 7After I pronounced my rulings at the conclusion of a voir dire, the trial resumed with the jury and MFI 21 was played in their presence with Mr. Moody in the witness box (see 679T.5). No transcript of the portions played to Mr. Moody was made in the proceedings. 8At 681T, the following evidence was given: Q. Mr Moody, you've just seen a portion of police interview played to you in this courtroom; is that right? A. Yes. Q. And in that interview you give an account to the police of what you say happened in the carpark, amongst other things? A. Yes. Q. On that video, the one you've just seen played in relation to the carpark, you told police you saw Mr Ryan punch the other man? A. Yes. Q. Right. And the man moved backwards after that; you told the police that too, didn't you? A. Yes. Q. And you told the police then Mr Ryan moved backwards and punch him again? A. Yes. .... CROWN PROSECUTOR Q. Mr Moody, you told police you saw more than one punch, didn't you? A. Yes. Q. That was true, wasn't it? A. Yes. Q. And after the last punch that you saw, I want to suggest to you you saw the other man fall backwards? A. I'm not sure if it was straight after, like. Q. I want to suggest it was straight after; putting that to you as a positive proposition, what do you say? A. I'm not sure. Q. What do you say to that, Mr Moody? A. I'm not sure. ... Q. You had no problems with your memory during that interview, did you? A. No. Not that I I don't remember doing the interview. Q. You don't remember doing the interview? A. Well, I can't remember what I said or what I did in it. It was nearly over year and a half ago. 9When cross-examined by Mr. Waterstreet, the following evidence was elicited at 704T.45. Q. Did you tell police during that very same record of interview, the one that we saw played, that you could not remember things from that night? A. Yes. The course of the cross-examination was thorough and detailed. The flavour of it may garnered from the following extracts at 752T.30: Q. So that is it. Mr Moody I want to suggest to you that having seen that and having been taken through the version you told police in the ERISP would you agree with me that your recollection during the ERISP about some activities in the mall is completely in error? A. Yes. ... Q. I think the statement you were referring to there is the recorded interview typed out? A. Yes. Q. Parts of which you were shown in the witness box with this jury? A. Yes. Q. And you heard and saw those parts? A. Yes. Q. Now was it the transcript that of that you had in mind when you told on your oath that the more you read the more confused you were? A. Yes. Q. And the version that you gave to police in the downstairs after you had left the cells and been taken into the interview room is again, is it fair to say, that you regard it as a somewhat unreliable account of what may have taken place? A. Yes. .... Q. Do you have any recollection of whether there was anything further before the man fell? A. I can't remember, I just remember seeing him fall. Q. But you don't know what caused him to fall? A. No. .... Q. And that was the last punch that you saw? A. Yes. Q. You say the fellow fell back towards, to the police. Are you saying he didn't fall as a result of the jab, did he? A. No. Q. Could he, from your recollection, were you saying to your recollection, did you see what caused him to fall? A. No. ... Q. You certainly know it wasn't as a result of the jab? A. Yes.

Factual Ruling 10In my judgment, considering this material as a whole, there is an inconsistency between the statement in MFI 21 that after the accused punched the deceased for the second time the deceased just fell backwards, and the evidence given before the jury that I have recounted. This inconsistency is not lessened by the statement in MFI 21 that Mr. Moody didn't know if the deceased fell because he was hit. The inconsistency is between the account in MFI 21 of a close temporal connection between the second punch and the deceased falling, on the one hand, and the disavowal of any connection between those two events in cross-examination, on the other. The final resolution of that question is, of course, a matter for the jury.

Legal Background - The Position Before The Commencement Of The Evidence Amendment Act 2007 11At common law, a prior inconsistent statement is not evidence of the truth of its contents, only evidence that the witness may not be telling the truth: Adam v. The Queen (2001) 207 CLR 96 at 104 [19]; Blewitt v. The Queen (1988) 62 ALJR 503 at 505. In Aslett v. R. [2006] NSWCCA 49 Barr J (with whom the other members of the Court agreed) pointed out at [76]: Before the commencement of the present Evidence Act, such statements, when admissible, were relevant only to the credit [of] the witness who made them. If their making was admitted, therefore, there was no purpose in tendering them: Alchin v. Commissioner for Railways (1935) 35 SR (NSW) 498. 12The High Court of Australia in Adam, (see also Court of Criminal Appeal in R. v. Adam aka Odishou (1999) 47 NSWLR 267) decided that under the Evidence Act, evidence of a witness's prior inconsistent statements will be admitted as evidence of the truth of what was said in them if the evidence is relevant for another purpose (that is, for a purpose other than proof of the truth of what was said in them). A footnote refers to s.60 of the Evidence Act which provided at that time: The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of the fact intended to be asserted by the representation. 13Gleeson CJ, McHugh, Kirby and Hayne JJ in their joint judgment reasoned as follows: (a)The basic test of admissibility is relevance (s.56 Evidence Act); (b)Relevance is to be determined on the assumption that the tribunal of fact accepts the evidence: s.55(1); (c)Evidence of prior inconsistent statements relate to the credit of the witness; (d)The credibility rule established by s.102 in its then form operated to exclude evidence that was relevant only to the witness' credibility; (e)The content of the inconsistent statement could rationally affect the question of a witness' credibility as well as the assessment of the probability of several facts in issue, accordingly, the credibility rule was not engaged; (f)Although prima facie excluded by the hearsay rule established in s.59, s.60 created an exception if the evidence was admitted because it was relevant for a purpose other than proof of the asserted fact, ie the credit of the witness; 14At 109[37] their Honours concluded: It is true, of course, that the result differs from what would be the result at common law, the difference being that, by s 60 of the Act, the prior statements would be admitted as evidence of the truth of their contents. But that difference brought about by s 60 was one of the significant alterations in the rules of evidence that the Act was intended to effect. No longer were tribunals of fact to be asked to treat evidence of prior inconsistent statements as evidence that showed no more than that the witness may not be reliable. The prior inconsistent statements were to be taken as evidence of their truth. Thus far from the result being, as the appellant asserted, bizarre or unintended, it is the intended operation of the Act The same result ensued in Aslett v. R. 15Gaudron J dissented in the result in Adam. Her Honour would have held that the s.38 discretion had not been validly engaged. But her Honour did not dissent about the effect of s.60 Evidence Act. At 114[57] her Honour said: One purpose which underlies s 60 of the Act is to overcome the common law position, which the Law Reform Commission regarded as anomalous, whereby a prior inconsistent statement was admissible only as to credit and not in proof of the facts thereby asserted. It is clear that, with the enactment of s 60, that is no longer the position [footnotes omitted]. And at 115[60] her Honour said: The omission from the dictionary definition of "probative value" of the assumption that the evidence will be accepted is, in my opinion, of no significance. As a practical matter, evidence can rationally affect the assessment of the probability of a fact in issue only if it is accepted. Accordingly, the assumption that it will be accepted must be read into the dictionary definition. And on that assumption, for the reasons given in the joint judgment, the prior inconsistent statements of Thaier Sako had substantial probative value. That being so, the combined effect of ss 103(1) and 60 of the Act was to make those prior inconsistent statements technically admissible in proof of the matters therein asserted.

Legal Considerations Following the Evidence Amendment Act 2007 16The 2007 Amending Act introduced significant amendments to Part 3.7 Credibiltiy which alter the way the hearsay rule (s.59), the credibility rule (s.102), the provisions about unfavourable witnesses (s.38) and the exception to the hearsay rule created by s.60 are to be understood as operating (cf Adam at 105 [23]). The interplay between these provisions was the key to understanding the reasoning of the plurality (and majority) in Adam. 17Odgers argues in Uniform Evidence Law Tenth Edition (2012) that these amendments have effectively reversed Adam, page 545 [1.3.7618] and 537 [1.3.7607]. 18The relevant provisions are as follows: Part 3.7 Credibility Division 1 Credibility evidence 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. Notes. 1 Sections 60 and 77 will not affect the application of paragraph (b), because they cannot apply to evidence that is yet to be admitted. 2 Section 101A was inserted as a response to the decision of the High Court of Australia in Adam v The Queen (2001) 207 CLR 96. Division 2 Credibility of witnesses 102 The credibility rule Credibility evidence about a witness is not admissible. Notes. 1 Specific exceptions to the credibility rule are as follows: · evidence adduced in cross-examination (sections 103 and 104) · evidence in rebuttal of denials (section 106) · evidence to re-establish credibility (section 108) · evidence of persons with specialised knowledge (section 108C) · character of accused persons (section 110) Other provisions of this Act, or of other laws, may operate as further exceptions. 2 Sections 108A and 108B deal with the admission of credibility evidence about a person who has made a previous representation but is not a witness. 103 Exception: cross-examination as to credibility (1) The credibility rule does not apply to evidence adduced in cross-examination of a witness if the evidence could substantially affect the assessment of the credibility of the witness. (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 witness knowingly or recklessly made a false representation when the witness was under an obligation to tell the truth, and (b) the period that has elapsed since the acts or events to which the evidence relates were done or occurred. 106 Exception: rebutting denials by other evidence (1) The credibility rule does not apply to evidence that is relevant to a witness's credibility and that is adduced otherwise than from the witness if: (a) in cross-examination of the witness: (i) the substance of the evidence was put to the witness, and (ii) the witness denied, or did not admit or agree to, the substance of the evidence, and (b) the court gives leave to adduce the evidence. (2) Leave under subsection (1) (b) is not required if the evidence tends to prove that the witness: (a) is biased or has a motive for being untruthful, or (b) has been convicted of an offence, including an offence against the law of a foreign country, or (c) has made a prior inconsistent statement, or (d) is, or was, unable to be aware of matters to which his or her evidence relates, or (e) has knowingly or recklessly made a false representation while under an obligation, imposed by or under an Australian law or a law of a foreign country, to tell the truth. 19At a glance one can see that these provisions are markedly different from the provisions considered by the High Court of Australia in Adam. Section 101A is entirely new. It defines credibility evidence in an extended manner which covers evidence which is relevant for more than one purpose i.e. credibility and some other purpose for which it is not admissible. The first footnote refers expressly, inter alia to s.60, and interestingly seeks to impose upon s.60 an interpretation different from the interpretation which underpins Adam. See also Lee v. the Queen (1998) 195 CLR 594 at 603 [39] - [40]). 20Footnote 2 says the enactment of 101A was a response to Adam. There is a new s.102. It eschews the problematic word only which was influential in the reasoning in Adam. It picks up the expression credibility evidence as defined in s.101A and has the effect that prima facie evidence having the type of dual purpose enjoyed by the prior inconsistent statement in Adam is excluded. Section 103 is amended; the expression has substantial probative value is dropped and instead could substantially affect the assessment of the credibility of the witness is inserted. The focus is credibility. 21Section 106 is new in form, and limits the calling of rebuttal evidence that is relevant to a witness' credibility (the word only is not used) to evidence which satisfies the two conditions expressed in pars. (a) and (b) of subsection (1), or in the alternative to par. (b), one of the conditions in subsection (2). The par. (a) condition has two parts. First, the substance of the rebuttal evidence must have been put to the witness in cross-examination, and the witness denied, did not admit or agree to, the substance of the evidence. 22I interpolate in this limited regard the exception to the credibility rule created by s.106 in its new form is reminiscent of the common law in as much as the rebuttal evidence is not admissible if in cross-examination the witness admitted the substance of the (rebuttal) evidence. 23The second condition, the par. (b) condition, is a grant of leave. As an alternative, leave is not required in five familiar categories of evidence, including in par. (c) of subsection (2) if the evidence tends to prove that the witness has made a prior inconsistent statement. 24As Mr. Odgers S.C. points out at page 537 (1.3.7607), the Australian Law Reform Commission explained in ALRC 102 [12.14]: Evidence relevant to both credibility and a fact in issue, but not admissible for the latter purpose, should be subject to the same rules as other credibility evidence. 25Even so, it seems odd that the operation of s.60 provided by the High Court's interpretation in Adam should be anticipated by a footnote to a provision in Part 3.7, especially as the footnotes do not form part of the Act: s.35 Interpretation Act 1987 (NSW). On the other hand, the expansive definition of credibility evidence and the new s.102 mean that gateway to the admissibility of a prior inconsistent statement is through Part 3.7, rather than directly through s.56, s.45 notwithstanding: s.45(4). 26However, if admitted through the s.106 exception, the prior inconsistent statement will, by dint of s.60, be admissible as evidence of the truth of the facts asserted in it in accordance with the decision in Adam, subject to the application of s.136 Evidence Act. 27I have already held by reference to the evidence I have set out that the first condition to admissibility in s.106(1) is satisfied. MFI 21 is a category of evidence which does not require leave i.e. a prior inconsistent statement. Subject to Mr. Waterstreet's second objection, MFI 21 is in my judgment admissible. 28To some extent my reasoning may conflict with the decision of McCallum J in McMahon v. John Fairfax Publications Pty Ltd (No. 5) [2012] NSWSC 218 at [21] - [39]. However, her Honour's decision focused on the exception to the credibility rule created by s103 Evidence Act as amended. Although in that case counsel argued that the tender of a document in rebuttal was not covered by the expression evidence adduced in cross examination of a witness in s.103, the s.106 point that has been influential in my thinking was not argued. The memorandum in that case was not put as a prior inconsistent statement but only as evidence which tends to prove that the witness knowingly or recklessly made a false representation when the witness was under an obligation to tell the truth within the meaning the meaning of s103(2)(a). I acknowledge that this exception has its equivalent in s106(2)(e).

Gately v. The Queen (207) 232 CLR 208 29The Evidence Act 1997 (Qld) permitted the evidence of a child sexual assault victim to be pre-recorded and played at the offender's trial. The question arose whether such evidence should be marked as an exhibit available to the jury in the jury room with the other exhibits after they had retired to consider their verdict. 30The leading judgment, if I may put it that way, was given by Hayne J. His Honour said: [86] The unstated premise for the proposition that a jury may have unsupervised access to recordings of evidence made under subdiv 3 of Div 4A of the Evidence Act is that the record of that evidence is a piece of real evidence, properly received in evidence as an exhibit. That premise is not right. The record of evidence given under these provisions is no more a piece of real evidence receivable at trial than is the written or electronic record of oral evidence given at the trial in the ordinary way. ... [93] When the effect of the relevant provisions of the Evidence Act is thus understood, it becomes evident that seldom, if ever, will it be appropriate to admit the record of that evidence as an exhibit. (That is not to say that there may not be evident good sense in marking the record for identification; but that is a step that is distinctly different from receiving the record in evidence and marking it as an exhibit.) [94] Moreover, when the effect of the relevant provisions is understood in the manner described, it also follows that a request by a jury for access to evidence pre-recorded in accordance with those provisions should ordinarily be dealt with in the same way as any request by a jury to be reminded of evidence that has been led at the trial. Seldom would it be appropriate to meet a request of that kind by giving the jury unrestrained access to the recording to play and replay. The reasons for not allowing access of that kind lie in the need to preserve fairness and balance in the conduct of the trial. 31The New South Wales Court of Criminal Appeal came to the same conclusion about video tape evidence played at a trial under Evidence (Children) Act 1997 (NSW) in R. v. NZ. Howie and Johnson J in a comprehensive judgment reviewed cognate or comparable legislation across many common law jurisdictions before expressing their conclusions at 677 [210] in the following terms: We should by now have made clear our view that this Court should not lay down any rule of practice or procedure to be followed in every case where the evidence in chief of a witness has been given by the playing of a videotape. However, we can summarise our views as to the procedure to be followedgenerally: (a) The video tape evidence of a Crown witness should not become an exhibit and, therefore, should not be sent with the exhibits to the jury on retirement; (b) Any transcript given to the jury under s 15A should be recovered from the jury after evidence of the witness has been completed; (c) It is for the discretion of the trial judge how a jury request to bereminded of the evidence in chief of the witness should beaddressed; (d) It would be inappropriate for the judge to question the jury as to the purpose for which they wish to have the tape replayed; (e) If the tape is to be replayed or the transcript of the tape provided to the jury, the judge should caution the jury about their approach to that evidence when the tape is being replayed to them or the transcript of the tape returned to them in terms to the effect that"because they are hearing the evidence in chief of the complainant repeated a second time and well after all the other evidence, they should guard against the risk of giving it disproportionate weight simply for that reason and should bear well in mind the other evidence in the case"; (f) The judge should consider whether the jury should be reminded of any other evidence, for example the cross-examination of the witness at the time that the tape is replayed or sent to the jury room, if that step is considered to be appropriate. But other than expressing those views, we believe that the request by a jury for the replaying of the tape should be dealt with by the judge in the exercise of discretion bearing in mind the need for fairness and balance in addressing that request. 32It seems to me that Gately and NZ highlight a principle which applies to evidence falling into a particular category. A recording of evidence made under legislation of the type considered in those cases is not a piece of real evidence, properly received in evidence as an exhibit. Rather, it is part of the record of the Court. As such a recording should not be made an exhibit, it should not go to the juryroom during the deliberations of the jury. The recording is the medium by which the evidence, or evidence in chief, of the particular witness is given. It is wrong in principle to permit the jury to have unsupervised access to that medium long after the evidence was given, because of the great risk that disproportionate weight might be given to evidence in that form (which can be played and replayed in the confines of the juryroom) over the evidence of other witnesses given in the conventional way. 33By way of contradistinction, Kirby J (at footnote 32 at 221 [31] in Gately), and Howie and Johnson JJ in NZ, referred with apparent approval to the joint judgment of Charles and Nettle JJA in R. v. Davies (2005) 11 VR 314 at 321[26]. The reference in NZ to Davies is at 663 [150], and their Honours' approval is apparent at 674[194]. 34At 670 [177] - 671[181] Howie and Johnson JJ dealt with other categories of evidence by saying: There are many occasions when evidence is placed before a jury by the use of electrical recording of images and the human voice. The most obvious cases are where there has been a recorded interview of a suspected person by the police and the lawful recording of conversations by the use of a listening device or a telephone interception. But there are also videotaped re-enactments of the offence, videotaped identification parades and views of the scene of a crime often with the use of computer enhancements. These are common features of modern criminal trials. At [180] their Honours said: ... We believe it to be the almost invariable practice for the jury to receive the video/audiotape admitted as an exhibit in the juryroom when they retire to consider their verdict. It is commonplace in our experience for the jury room to be installed with the means by which the jury are able to replay the tape or disc admitted into evidence during the course of their deliberations. The jury, therefore, has ready access to, for example, the recorded interview between the accused and police or the recordings ofintercepted conversations. It also has during its deliberations the transcripts of those recordings. Nothing in their Honours' judgment expresses any disapprobation of that practice. 35In R. v. Davies Charles and Nettle JA said at [26]: The danger inherent in allowing a jury to have unsupervised access to a VATE tape is that the jury will give undue weight to the complainant's evidence-in-chief and correspondingly insufficient attention and weight to the complainant's in-court-examination in chief and evidence in cross-examination. The damage exists because the VATE tape is a video tape of the complainant giving testimony in chief. But the tape of a complainant participating in an identification parade or a video identification parade is in our opinion of a different nature. It is not in the form of testimony in chief. It is the record of an event, and it is in that respect similar to other forms of video tape evidence tendered into evidence and considered by the jury during the course of their deliberations. No one suggests that a jury should not have unsupervised access to a security video tape of an offence being committed or to a video tape of a crime scene or of an accused being interviewed. And it is difficult to see that there is any more danger of a jury giving undue weight to video evidence of an identification parade than to any other video evidence of that kind. (Emphasis added) 36By way of digression, doubtless no one would cavil at the idea that some appropriate direction should be given to the jury to caution them against giving disproportionate weight to such evidence, and to consider it in the light of the evidence the eyewitnesses gave about the matters depicted on the CCTV footage, for the simple reason that some of the relevant events depicted occurred at the margin of the recording, and other events occur off screen. Especially in the case of these latter matters, the jury must rely upon eyewitness accounts in context to what is seen on the screen. 37On the basis of Davies at [26] my ruling is that MFI 21 be admitted as Exhibit P.

Amendments 27 September 2012 - Add the words "By way of digression" at the beginning of paragraph Amended paragraphs: Paragraph 36 27 September 2012 - Add the words "On the basis of Davies at [26]" at the beginning of paragraph. Amended paragraphs: Paragraph 37 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: 27 September 2012

Evidence Act 1997(Qld)

Evidence Amendment Act 2007(NSW)

Evidence (Children) Act 1997(NSW)

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