Court of Criminal Appeal (Tas)|2011-04-21|Before: Crawford CJ, Tennent JJ, Blow J, Evans J

Director of Public Prosecutions v Finnegan [2011] TASCCA 3 (21 April 2011)

COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

CITATION: Director of Public Prosecutions v Finnegan [2011] TASCCA 3

Criminal Law - Evidence - Credibility - Prior inconsistent statements - Generally - Application by Crown to cross-examine own witness - Factors relevant to exercise of discretion whether to permit cross-examination - One purpose of application to satisfy requirements to enable Crown to tender prior inconsistent statement as evidence of truth of contents.

Tasmania v Mayne [2009] TASSC 82; Tasmania v S [2004] TASSC 84; Houston and Stanhope v R (1982) 8 A Crim R 392, referred to.

First Respondent: Legal Aid Commission of Tasmania

Second Respondent: Legal Aid Commission of Tasmania

Judgment Number: [2011] TASCCA 3

1 That the appellant be granted leave to appeal against the acquittal of each respondent on the count of assault.

2 That the acquittal of each respondent on that charge be quashed.

1 I agree for the reasons stated by Evans and Tennent JJ that leave to appeal should be granted and the appeal allowed. I also agree that the appropriate order is that the acquittal of the respondents be quashed and that there be a re-trial.

2 I agree with Tennent J's reasons for judgment and the consequential orders that she proposes, and I add the following.

3 When ruling on the prosecutor's application to cross-examine Mr Watkins, pursuant to the Evidence Act 2001, s38(1)(a) and (b), Blow J left open the question of whether subpar(a) applied and concluded that subpar(b) applied. That being so, his Honour addressed the matters that s192(2) provides that a court is to take into account in deciding whether to grant leave. As no criticism has been made of the manner in which his Honour dealt with the matters raised by s192(2)(a), (d) and (e), there is no reason to address what his Honour said about them. In the circumstances of this case they are inconsequential save that, as noted by his Honour, the proceeding was the trial of three accused on a charge of assault, and that the prosecution's case was that the three accused and Mr Watkins acted in concert in assaulting the complainant who had suffered serious injuries. Having observed that s192(2)(c) required that he take into account the importance of the evidence in relation to which leave was sought to cross-examine, his Honour said:

"Well the evidence that the Crown wishes to lead, is evidence in accordance with the account of events given by Mr Watkins in his interview. And that's very important evidence because it's evidence of an eye witness who claims to know each of the three accused and to have seen who did what in the course of the assault in question. ... Perhaps in evaluating importance, it's appropriate to note that as Mr Watkins on the Crown's case was criminally concerned in relevant events, that evidence he could give would not be so valuable as that of somebody who wasn't criminally concerned."

4 Turning to s192(2)(b), the need to consider the extent to which the grant of leave would be unfair to a party or to a witness, his Honour described this as "the critical paragraph" and continued:

"Well I can't see any unfairness to Mr Watkins. He, in my view, he's created this situation and it wouldn't be unfair to him to be cross-examined. But, there are problems of unfairness to each of the three accused. For a start, Mr Watkins is, according to the account in his interview, a person who was criminally concerned in the events in question. And such people have a tendency, or such people often try to shift blame away from themselves and on to other people, including innocent people. So, it may be that any version of events that he did give would not be accurate and that he would be serving purposes of his own in trying to shift blame on to others. One or more of whom might have been innocent. Secondly, ... - if I do give leave ...- it's unrealistic to think that it's possible or likely that Mr Watkins might do anything other than continuing to maintain that he has no memory of the events in question. That being so, the evidence that he is likely to give will be of no value. And the[re]'ll be a risk of prejudice, in that the jury might act on the information or assertions contained in questions, even if they're instructed not to do so, and told that answers are evidence but questions aren't. There's a risk that they'll assume any assertions in the questions to be the truth, or to possibly be truth. There's a risk that they might begin speculating, basing their speculation upon things suggested in questions. And there's a problem there that any version of events asserted in questions, couldn't be tested by cross-examination if the witness were to continue to maintain that he is so drug affected that he can't remember anything. So I think it would be a waste of time to grant leave, but more significantly I think, I think it would ... involve a risk of unfair prejudice to each of the three accused, and for that reason I refuse leave."

5 I agree with his Honour's conclusion that Mr Wallace was likely to continue to maintain that he had no memory of the events in question. However, with respect, I do not agree with his Honour's conclusions: that the evidence Mr Watkins was likely to give would be of no value; that it would be a waste of time to grant leave to cross-examine him; and, that if Mr Watkins was cross-examined, there was a risk of prejudice in that the jury might act on the information or assertions contained in questions, even if instructed not to do so. The cross-examination of Mr Watkins was of vital importance for the purposes of a likely application by the prosecution to put the recording of his prior inconsistent statements into evidence. Insofar as his Honour's conclusions seem to be based on an assumption that if that application was made, it must fail, the conclusions are premature, and with respect, I disagree with the assumption.

6 In the course of her submissions opposing the grant of leave to cross examine Mr Watkins, trial counsel for the first respondent submitted to his Honour that it would be unfair to give the State leave to, in effect, put great chunks of a record of interview to Mr Watkins. Counsel submitted that even if his answers were, "I don't know", there was a very real danger that the jury would misuse this evidence. His Honour's concern that if Mr Watkins was cross-examined there was a risk that the jury might act on information or assertions contained in questions, reflects this submission. In my view this concern should have been catered for by confining the prosecutor's leave to cross-examine Mr Watkins to questions directed to satisfying the pre-conditions for adducing evidence of a prior inconsistent statement that are contained in s43(2). To that end all the prosecutor needed to do was inform Mr Watkins of enough of the circumstances of his inconsistent statement to enable him to identify it, and draw his attention to so much of it as was inconsistent with his evidence. The crucial inconsistency was Mr Watkins' alleged inability to recall anything about the events of the night in question. Had this course been followed, and had the prior inconsistent statement been put into evidence, the concern referred to would have been largely alleviated.

7 The evidence established that Mr Watkins had participated in a police interview some six weeks subsequent to the conduct in question and that there was an audio visual recording of it. In it Mr Watkins had said that he and the three accused, which includes the two respondents, all kicked the complainant to the head and punched him to the head, and were all fully involved in assaulting the complainant while he was on the ground. On the evidence before his Honour it was likely that, if cross-examined, Mr Watkins would agree that he was the person in the audio visual recording of the interview, acknowledge that he had pleaded guilty to a charge of assault arising from his participation in the assault that was the subject of the interview, and acknowledge that he had been convicted and sentenced for that crime. It was also likely that Mr Watkins would maintain that he had no recall of the incident and he had no recall of participating in the interview.

8 Evidence to the above effect from Mr Watkins would not have been a waste of time. It was necessary in order to found an application by the prosecution to lead evidence of the audio visual recording of Mr Watkins' prior inconsistent statements. Had that application been made and succeeded, the recording would have spoken for itself. In that event, there would not have been an out of the ordinary risk that the jury might act on information or assertions contained in questions put in the course of the police interview, even if directed not to do so. In the course of any trial, when witnesses are cross-examined or when a recording of an accused's police interview is tendered, it is almost inevitable that questions will have been asked, either by counsel or an interviewing police officer, that contain information or assertions. This does not present a problem that cannot be resolved. It is usually dealt with by a direction to the jury that questions are not evidence.

9 On the morning following his Honour's rejection of the prosecutor's application for leave to cross-examine Mr Watkins pursuant to s38(1)(a) and (b), the prosecutor renewed that application on the basis of s38(1)(c). The focus of subpar(c) is on whether the witness has, at any time, made a prior inconsistent statement. When advancing this application the prosecutor, Mr Dixon, referred his Honour to Tasmania v S [2004] TASSC 84 where Underwood J (as he then was) held that evidence from a witness to the effect that she could not recall making a statement in which she repeated a complaint to her mother, was inconsistent with other evidence of her having made such a statement. In so concluding, Underwood J referred to Houston and Stanhope v R (1982) 8 A Crim R 392. That decision relates to the Evidence Act 1958 (Vic), s34, which entitled a party that produced an adverse witness to contradict the evidence of the witness by proving that the witness had "made at other times a statement inconsistent with his present testimony". The circumstances that fell for consideration in Houston are strikingly similar to those that arose in the present case. Starke J, agreed with by O'Brien J, said at 397:

"Mr Weinberg in a powerful argument submitted that the statement made by Buckingham to the police ... was not an inconsistent statement within the term in that section, in that he did not deny that he had made the statement and he did not deny that he had made any of the statements in it. What he said was that because of his drug addiction he could not remember whether he had or he had not made the statement, but he might have. He also said he could not remember if the statements therein were true. In my opinion this submission is misconceived. If one lays the statement alongside the evidence he gave, they are in every respect quite different. Whether or not there is an explanation for why he now says he cannot remember is a matter of fact but cannot alter the substance of the original statement or the substance of the present evidence, and, in my judgment, if one says on a certain day 'Stanhope and Houston came to my house', and then says when he is called to give evidence that he cannot remember whether they did or not, those statements are on the very face of it inconsistent with one another, they are different to one another which, to my mind, is one and the same thing, and accordingly I am of opinion that the prior statement was an inconsistent statement with his present evidence ... ."

10 Crockett J, at 400, addressed the proposition that the witness's prior police statement was not inconsistent with the witness's evidence and said:

"It was said for the applicant that there was no inconsistency because the witness when testifying did no more than swear that, because of his then having been in a drug affected state, he could not remember the events of the day in question and so could not say if the contents of the statement were true or not. ... The evidence shows that what the witness was seeking to convey, by implication if not expressly, was that he could not at the time of testifying, nor had he ever been able to, say what the events of the day of the offence were because on that day his awareness of events was so clouded by drug ingestion as to prevent the imprint of them upon his memory as from the time of their occurrence. This testimony is clearly inconsistent with his statement."

11 In dealing with the application in the subject case for leave to cross-examine Mr Watkins pursuant to s38(1)(c), his Honour said:

"I'll assume for the purpose of this ruling, but without deciding the point, that Mr Dixon's right in his contention, that there has been a prior inconsistent statement, or a series of them. ... The, ... question that I then ask myself is if the assertions made by Mr Watkins during his police interview happen to constitute prior inconsistent statements, does that make the case for the granting of leave under Section 38 (1) any stronger? But I don't think it does. The ... factors weighing in favour of granting leave are that the, the evidence or the representations made by Mr Watkins in his police interview are important evidence. Because they're evidence as to ... who the people were who used force on this occasion and who did what. And we've got to the end of the Crown case and it seems it's the only evidence that the Crown's managed to get to court as to who used force and who did what, except in relation to some evidence concerning Mr Simpson. So it's, it's very important evidence. But all of the factors that weigh against granting leave are, are as forceful as they were yesterday. ... It's unrealistic to, in my view, to expect that Mr Watkins will be shaken by cross-examination. The result is that the jury will hear a series of assertions in questions as to who used force and who was there using force and who did what. And there's a risk of unfair prejudice to the three accused. ...[A]nd it won't be possible to test the assertions previously made by cross-examination and it's significant that Mr Watkins is a person who was ... criminally concerned in the events on the night in question. So, the result must be the same as it was yesterday, I refuse the application."

12 With respect, I am in no doubt that Mr Watkins' interview with the police contained many highly relevant prior inconsistent statements, and that the availability of evidence of those statements in an audio visual recording made the case for granting leave to cross-examine him extremely strong. For the reasons I have already given, in my view, his Honour's concern that there was a risk of unfair prejudice because the jury would hear a series of assertions in questions as to who used force, and who was there using force, and who did what, should have been catered for by confining the prosecutor's leave to cross-examine to questions directed to satisfying the pre-conditions for the admission of a prior inconsistent statement. Had this course been followed and had the prior inconsistent statement been put into evidence, this concern would have largely been resolved. The means of proving the prior inconsistent statement would have presented no problem. There is no better method of providing evidence of a prior inconsistent statement than an audio visual recording of it.

13 The respondents and Jai Darren Simpson were charged with unlawfully assaulting Craig Anthony Sinfield at East Devonport on or about 29 July 2009. They all pleaded not guilty, and the matter went to trial before a jury. On 30 November 2010, the respondents were found not guilty by a directed verdict because no witness had identified them as participants in the assault, and neither had made any admissions. Simpson was found guilty. He had made limited admissions, and there was some other evidence as to his involvement. A fourth male, Sean Watkins, was also criminally involved in the incident. He pleaded guilty and had, by the time of the trial, been sentenced, although that information was not before the jury. The State called Watkins as a witness on the trial.

14 This is an application by the Director of Public Prosecutions for leave to appeal against the acquittal of the respondents. The application arises out of rulings made by the learned trial judge, Blow J, by which he refused the State leave to cross-examine Watkins, and refused to permit the State to adduce evidence of a video recorded interview of Watkins by police. The bases for the application are that:

"(a) there was no proper or valid reason not to allow the questioning and adducing of evidence as sought, and further or in the alternative,

(b) the learned trial Judge took into account erroneous and/or irrelevant matters, namely that:

(i) counsel for the Respondents would be 'unable to test the assertions made in the interview by cross-examining Mr Watkins' and/or that

(ii) the unfairly prejudicial value of the evidence which would be produced would outweigh its probative value, and further or alternatively,

(c) the learned trial Judge failed to correctly apply and follow Adam v The Queen (2001) 207 CLR 96; and further or in the alternative;

(d) the learned trial Judge failed to give any, or any sufficient, weight to the purpose and policy of the particular provisions of the Evidence Act 2001 which he was obliged to construe and apply; and further or in the alternative,

(e) the learned trial Judge failed to correctly identify any unfair prejudice which might flow from permitting the questioning and adducing of evidence sought, and failed to correctly or at all consider how directions might obviate or reduce such unfair prejudice, if any."

15 The Criminal Code Act 1924, s401(2), permits the Attorney-General, with the leave of the Court, to appeal against an acquittal on a question of law. Section 402(1) provides that, on an appeal, the Court shall allow the appeal if it is satisfied on any ground whatsoever that there was a miscarriage of justice. The appellant submits that there was a miscarriage of justice, and that this Court should quash the order of acquittal and order a new trial.

16 In opening their case for the respondents, defence counsel did not suggest to the jury that the respondents were not present at the time of the alleged incident. The jury was told, in effect, that the issue was self defence or defence of another. That, in itself, does not leave the directed verdict open to being impugned. However, it is relevant to the Court's determination of whether or not there has been a miscarriage of justice, given the conviction of Simpson at the same trial.

17 A number of witnesses, including the complainant Sinfield, gave evidence at the trial. There was little doubt from their evidence that Sinfield was assaulted by four men. None of those witnesses was able to identify the respondents as the alleged attackers. Each however was cross-examined by reference to the statements they had previously made to police or evidence they had previously given. The witness Watkins was then called.

18 The following exchange occurred between him and trial counsel for the State:

"Thank you. Mr Watkins I want to ask you some questions about an incident at East Devonport, 29th of July 2009. Do you know anything about an incident at East Devonport on that date?.....Yeah, I know about it, but I can't remember, I can't recall that evening.

Okay. What do you know about it?.....That I, I just-

MISS JAGO SC: Well your Honour I object to that.

WITNESS: -just know, yeah.

HIS HONOUR: Just a minute, what's your, what's your-

MISS JAGO SC: If he knows about it based purely on hearsay, then it's inadmissible. If he has personal knowledge of it, then it may be admissible.

MR DIXON: Thank you, your Honour.

HIS HONOUR: It's a fair point isn't it Mr Dixon?

MR DIXON: It is it's a fair point.

HIS HONOUR: What, all right, come back to you Mr Dixon.

MR DIXON (Resuming): Do you know about it because you were there?.....Yes I do recall being told I was there, but-

HIS HONOUR: Do you remember being there?

WITNESS: No sir.

MR DIXON (Resuming): Do you remember who else was there?.....Oh, I don't remember-

You don't remember yourself?.....-them being, anyone else being there or meself being there or-

So you don't remember being at the intersection of Banksia Crescent and Hakea Place in East Devonport on the 29th of July last year?.....No sir.

Do you know Anthony Finnegan, Leon Shaw and Jai Simpson?.....Yes.

Can you remember if any of them were with you at that address?.....No.

So I'll ask you again, were you there?.....I can't remember.

Do you recall speaking to police-.....No I can't.

-about an incident?.....Yeah I can't remember.

Why can't you remember?.....Gee I've got a bad memory due to heavy drug use.

Your Honour, I'd like to make an application."

19 Counsel for the State then made an application in the absence of the jury pursuant to the Evidence Act 2001 ("the Act"), s38(1)(b), specifically, at the time the application was made, confining it to that subsection. Defence counsel were not prepared to deal with the application on the papers, but required that evidence be led on a voir dire to determine the application. An adjournment over a weekend intervened. Before evidence on the voir dire began, counsel for the State expanded his application to include reliance on the Act, s38(1)(a) and (c). Section 38(1) provides as follows:

"A party who called a witness, with the leave of the court, may question the witness as though the party were cross-examining the witness about -

(a) evidence given by the witness that is unfavourable to the party; or

(b) a matter of which a witness may reasonably be supposed to have knowledge and about which it appears to the court the witness is not, in examination in chief, making a genuine attempt to give evidence; or

(c) whether the witness has, at any time, made a prior inconsistent statement."

20 On 16 September 2009, that is about six weeks after the alleged assault, Watkins was interviewed by police. His interview was recorded. That interview was proved on the voir dire. It was then played. In the course of that interview, Watkins admitted being involved in the incident on the night of 29 July, and he and the respondents and Simpson bashing and kicking Sinfield. When questioned on the voir dire, Watkins admitted he was the person in the video recorded interview and that he had been convicted of the assault which had occurred. However, to every other question he was asked by counsel for the State, he responded "Don't recall". Under cross-examination, he gave as his reason for his lack of recollection his heavy use of drugs. He also agreed that he had been placed on a drug treatment order about the time of the assault because of longstanding issues with illicit substances. He was able to tell the court that his drug use had continued and increased after that, and describe what drugs he took.

21 At the conclusion of the evidence on the voir dire, counsel for the State abandoned reliance on the Act, s38(1)(c). He did not abandon reliance on s38(1)(a), and yet made submissions only by reference to s38(1)(b). Counsel for both respondents confined their submissions effectively to s38(1)(b). Counsel for the respondent Finnegan indicated at the start of her submissions that she was addressing only the application made and that, if the State were seeking to tender the record of interview with Watkins, that was "a whole new ballgame". However, nobody sought to press the State as to what its intentions were in respect of the interview.

22 The only authority referred to in the course of submissions and the ruling was that of Tasmania v Mayne [2009] TASSC 82, and that was referred to by counsel for the respondent Shaw. She made no reference to any part of the case. She simply cited it in support of her submissions that leave ought not be granted because:

" ... of the unfair prejudice that could be suffered by the very fact that we're just not going to be able to cross-examine him .... So we are going to be ham strung in terms of being effective to be able to test his evidence in regards to the record of interview, if that's put before the jury. That goes to, in my respectful submission, the probative value of it and certainly goes to the prejudicial effect, because the jury may be left in the position where they also accept that he's lying about having no memory. But, then accept what he said on his record of interview must be the truth. And we've not no way in order to cross-examine him on that. So in my submission your Honour, the probative value of his evidence is very low, given the inherent unreliability of it. But the prejudicial effect is going to be extremely high, especially given if this interview is put before the jury and we have no way to test it."

23 Having heard counsels' submissions, the learned trial judge refused leave to cross-examine. He found that s38(1)(b) had been satisfied in that Watkins was not making a genuine attempt to give evidence about the night. His Honour said at VD 117 lines 31 - 37:

"And I'm satisfied that he wasn't making things up and that he wasn't parroting information that had been provided to him by others. But that he was speaking from memory and this memory was good at that time. In my view it's simply not plausible that his memories of the night in question and of the interview, were completely erased as a result of increased drug use or anything else, sometime between September and February."

His Honour then proceeded to deal with the impact of the Act, s192, on the application. Section 192 provides as follows:

"(1) If, because of this Act, a court may give any leave, permission or direction, the leave, permission or direction may be given on any terms the court thinks fit.

(2) Without limiting the matters that the court may take into account in deciding whether to give the leave, permission or direction, it is to take into account -

(a) the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing; and

(b) the extent to which to do so would be unfair to a party or to a witness; and

(c) the importance of the evidence in relation to which the leave, permission or direction is sought; and

(e) the power of the court, if any, to adjourn the hearing or to make another order or to give a direction in relation to the evidence."

24 By reference to s192(2)(c), his Honour accepted that the evidence sought to be led from Watkins was very important. He noted that Watkins was criminally concerned in the events, and that therefore his evidence was not as valuable as that of a person not involved in the incident. His Honour then referred to s192(2)(e). As to that, he said at VD 118 lines 22 - 27:

"While the only other course favourable to the Crown that could be taken would be to admit the evidence under Section 65, as first-hand hearsay. But the, any attempt by the Crown to do that is likely to be opposed on the basis of unreliability and prejudice, or asserted unreliability and prejudice. The-. So far as I'm concerned, Paragraph (e) is a completely neutral factor."

25 His Honour then focused on the impact of s192(2)(b) and ruled as follows:

"Well I can't see any unfairness to Mr Watkins. He, in my view, he's created this situation and it wouldn't be unfair to him to be cross-examined. But, there are problems of unfairness to each of the three accused. For a start, Mr Watkins is, according to the account in his interview, a person who was criminally concerned in the events in question. And such people have a tendency, or such people often try to shift blame away from themselves and on to other people, including innocent people. So, it may be that any version of events that he did give would not be accurate and that he would be serving purposes of his own in trying to shift blame on to others. One or more of whom might have been innocent. Secondly, the - if I do give leave, I think it's unrealistic to assume or to - it's unrealistic to think that it's possible or likely that Mr Watkins might do anything other than continuing to maintain that he has no memory of the events in question. That being so, the evidence that he is likely to give will be of no value. And they'll [sic] be a risk of prejudice, in that the jury might act on the information or assertions contained in questions, even if they're instructed not to do so, and told that answers are evidence but questions aren't. There's a risk that they'll assume any assertions in the questions to be the truth, or to possibly be truth. There's a risk that they might begin speculating, basing their speculation upon things suggested in questions. And there's a problem there that any version of events asserted in questions, couldn't be tested by cross-examination if the witness were to continue to maintain that he is so drug affected that he can't remember anything. So I think it would be a waste of time to grant leave, but more significantly I think, I think it would be-, would involve a risk of unfair prejudice to each of the three accused, and for that reason I refuse leave."

26 After that ruling, no further questions were addressed to Watkins before the jury by any counsel. A number of other witnesses were called and examined before the Court finished sitting for that day. The following morning, counsel for the State again made an application to cross-examine Watkins, this time by reference to the Act, s38(1)(c). The application was rejected on the same basis as the earlier one. There followed an application pursuant to the Act, s66, to put Watkins' police interview into evidence. The application was opposed and ultimately rejected. His Honour determined that s66 did not apply because the contents of the interview could not be said to be fresh in the memory. He also determined that, if he was wrong as to that, then by reference to the Act, s137, the probative value of the evidence was outweighed by the unfair prejudice to the respondents. His Honour said as to that:

"If I'm wrong as to that, I, I think that the, there's a danger of unfair prejudice that outweighs the probative value of the interview. In one sense its probative value is very significant because it's evidence as to who was present and who did what at the time of the incident in question. However, the probative value is diminished because Mr Watkins was, by his own admission, someone who was involved in the unlawful assault upon the complainant. And therefore, it's necessary to, it would be necessary to warn the jury of the danger that a person in his position was seeking to shift blame on to others, when it didn't belong with them. So far as the danger of unfair prejudice is concerned, I agree with Miss Edwards and Miss Jago, the - if the interview is played to the jury and Mr Watkins is produced for cross-examination, the likelihood is that he will say that he doesn't remember the night in question and doesn't remember the interview and therefore, they will be placed in the position where they're unable to test the assertions made in the interview by cross-examining Mr Watkins. And that will result in a danger of unfair prejudice which, in my view, outweighs the probative value of the representations made in the interview."

27 Counsel for the appellant described the ruling his Honour first made as a "rolled up" ruling. That is, it not only related to an application for leave to cross-examine pursuant to the Act, s38, but also related to an application to lead evidence of a prior inconsistent statement by reference to s66, in circumstances where the latter application had not been made. That the ruling was of that nature is perhaps highlighted by the language used and an understanding of the issues to which consideration might need to be given in respect of each application. In the passage set out in [13], his Honour initially referred to the concept of unfairness by reference to s192(2)(d). However, as he continued with his ruling, the concept of unfairness became the concept of "risk of prejudice". Towards the end of the ruling, the term "risk of prejudice" became "risk of unfair prejudice". Section 192(2) makes no reference to risk of prejudice or risk of unfair prejudice - concepts more usually associated with applications to exclude evidence by reference to ss135 and 137. Section 192 deals with the general concept of fairness. Sections 135 and 137 would, of course, have come in to play had leave been given, and an application was made to exclude the prior inconsistent statement.

28 The point made by counsel for the appellant about an application to put any prior inconsistent statement before the jury was that the State, in being refused leave to cross-examine Watkins, was denied the opportunity to lay the necessary groundwork for it by reference to the Act, s43(2). The Act, counsel for the appellant submitted, specifically made provision for a mechanism by which a prior inconsistent statement could be proved. Unfairness arose because the learned trial judge, in ruling as he did, prevented the State from utilising that mechanism. Section 43 provides as follows:

"(1) A witness may be cross-examined about a prior inconsistent statement alleged to have been made by the witness whether or not -

(a) complete particulars of the statement have been given to the witness; or

(b) a document containing a record of the statement has been shown to the witness.

(2) If, in cross-examination, a witness does not admit that he or she made a prior inconsistent statement, the cross-examiner is not to adduce evidence of the statement otherwise than from the witness unless, in the cross-examination, the cross-examiner -

(a) informed the witness of enough of the circumstances of the making of the statement to enable the witness to identify the statement; and

(b) drew the witness's attention to so much of the statement as is inconsistent with the witness's evidence.

(3) For the purpose of adducing evidence of the statement, a party may re-open the party's case."

29 There is no dispute that the purpose of the application for leave to cross-examine Watkins was twofold. It was to attempt to have Watkins admit he had made the earlier statement to police, and, if possible, have him admit what he then said was true. It was also of course to satisfy the requirements of the Act, s43(2), in case recourse to that section were needed. Unless those requirements were satisfied, evidence of any prior inconsistent statement of Watkins could not be adduced.

30 The question of the propriety of the reception of a prior inconsistent statement by a witness was considered by the High Court in Adam v R (2001) 207 CLR 96. In that case, the court was dealing with rulings made by a trial judge pursuant to which he gave leave to a prosecutor to cross-examine a witness who was criminally involved in the events the subject of the particular trial. The witness had made a statement to police about the relevant events. However, when he gave evidence on a voir dire, his evidence was not in accordance with the statement. The evidence of the witness on the voir dire was generally that he had not seen much of any use, and that what he had said to police was what he had been told by others. The trial judge also ruled that the evidence of the prior inconsistent statements should be admitted as evidence of the truth of what was said in them. These rulings were challenged. Their Honours, Gleeson CJ, McHugh, Kirby and Hayne JJ, said at [18] - [19]:

"Propriety of reception of a prior inconsistent statement

18 In Blewitt v The Queen it was said that:

'It is established that the calling of a witness known to be hostile for the sole purpose of getting before the jury a prior inconsistent statement which is inadmissible to prove facts against the accused is improper and might well give rise to a miscarriage of justice: see R v Thompson; R v Hall.'

...

19 What is important, however, is that, under the 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). If admitted as evidence of the truth of its contents in this way, there would be no tender of a statement 'inadmissible to prove facts against the accused' and there would, therefore, be nothing improper in adopting the course proposed. This may be contrasted with the common law position where a prior inconsistent statement is not evidence of the truth of its contents, only evidence that the witness may not be telling the truth. It is with those circumstances that Blewitt's case was concerned, and to which it will still have application in the absence of statutory provisions of the kind now under consideration."

31 It is clear that, from the point of view of the majority in Adam's case, having regard to the provisions of the Act as opposed to the common law, it was not improper for a prosecutor to seek to call a witness, known or perceived to be unfavourable, for the purpose of applying to put before a jury that witness's prior inconsistent statement.

32 Their Honours went on to deal with the issue of any unfairness which might arise in giving leave to cross-examine where it could be said there would be difficulty in testing the evidence of the witness. Their Honours said at [29] - [30]:

"Reduced to its essentials, the complaint was that the defence would be left to rely on the jury accepting the witness when he said, as he did, that he simply reported to police what others had told him. The defence could not, as an alternative attack on the witness, challenge the detail of what he had said to police.

It is right to say that the defence could not readily mount the second kind of attack on the witness's evidence without accepting at least the possibility that he had given a first-hand account of events to police. But as counsel for the appellant accepted in argument, it was no part of the defence case to put to this witness (or any other witness) some alternative version of the appellant's participation in the events that happened. The appellant could readily have sought to support the witness's contention that he had no first-hand memory of the events by cross-examining him as to his motive to give an account which exculpated the witness and his brother, Thamir. It could have cross-examined him by suggesting that he had been too affected by drink or his wounds to give a proper account. In these circumstances there was no unfairness. The judge was right to conclude that the defence could test the evidence which was to be led. "

33 It might be argued that, in the present case, it was indeed part of the defence case to put to Watkins a version of events different from that which he had outlined to police, or at least put to him that he could not know precisely what the role of the respondents had been because of his own involvement. It must be accepted that, if Watkins maintained a complete loss of memory, putting those matters to him might be difficult. However, counsel for the respondents would not have been precluded from challenging Watkins as to his truthfulness about his loss of memory, or doing what they did on the voir dire, which was obtaining evidence of his drug taking, and using that to suggest perhaps even what he told police was suspect.

34 Counsel for the appellant in the present case relied heavily on Adam's case. He submitted that submissions based on the law as stated in Mayne's case were simply not maintainable post Adam. In Mayne, Porter J considered the question of witnesses who were, in that case, criminally concerned in events the subject of a trial. The application before him was one to exclude, by reference to the Act, ss136 or 137, the prior inconsistent statement of each witness, leave already having been given to the State to cross-examine each of them. His Honour noted that in dealing with s137, he needed to make an assessment as to whether the probative value of the evidence was outweighed by the danger of unfair prejudice. In assessing probative value he determined that he needed to make an assessment of the reliability of the evidence rather than taking it at its highest.

35 His Honour then went on to consider the reliability of the evidence. In doing so he made reference to remarks by Gaudron J in Adam at [66] - [68] and then at [77] - [78]. In particular he referred to part of par[77], where her Honour said:

"Where the issue is whether leave should be granted to cross-examine a witness so that hearsay evidence which is otherwise inadmissible may be put before a jury, the primary consideration, in my view, is whether that evidence is inherently reliable or, if it is not, whether a jury can safely find that it is necessarily reliable because, for example, a finding that the witness is untruthful in some particular aspect of his or her evidence necessarily entails the consequence that his or her earlier statement is true. The second matter to which regard should be had is whether the truth and accuracy of the statement can properly be tested."

36 However, her Honour was in the minority in Adam's case. The majority, consisting of Gleeson CJ, McHugh, Kirby and Hayne JJ, made it clear at [37] - [38] that it was the intention of the Act to alter the common law. Their Honours said:

"37 The operation of the Act on the appellant's example is correctly stated but the result that is obtained is not, as the appellant contended, odd or unexpected. 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[22].

38 The example which the appellant advanced in argument is, in effect, the situation which arose in relation to the evidence of Thaier Sako. Once it was decided that the prosecution could cross-examine him about his prior statements, the evidence of the prior statements was admissible as evidence of the truth of the contents of the statements. "

The emphasis in their Honours' remarks was on the intended operation of the Act. In Adam's case, the prior inconsistent statement was admitted.

37 Counsel for the respondents on the other hand submitted that Adam was largely dependent on its facts, and general principles could not be extracted and applied to the present case. With respect, I disagree. Their Honours were at pains to emphasise that the common law, as it dealt with prior inconsistent statements, had been altered by the Act, and that the different approach was consistent with the intended operation of the Act. Those statements were in no way confined to the particular facts of that case.

38 It is apparent from the submissions made at trial by counsel for the respondent Shaw (see [9]) that the inherent unreliability of Watkins' prior statements arising from his criminal involvement, relied upon to underpin her opposition to the leave application, were based on the decision in Mayne's case. That, in turn, flowed from remarks of Gaudron J in Adam which were more aligned with the position of prior statements by reference to the common law rather than the Act. The majority clearly identified that the Act had altered the common law and that, as far as prior inconsistent statements were concerned, the position was entirely different.

39 The application before the learned trial judge was, in the first instance, an application for leave by reference to the Act, s38. The learned trial judge had to determine whether any of the conditions in s38(2) had been met. He determined that they had been, and indeed counsel for the respondents conceded that was correct. His Honour then needed to consider s192. The focus clearly was on s192(2)(b), that is, the issue of unfairness.

40 In the present case, when he dealt with the issue of unfairness, the learned trial judge dealt with the questions of unfairness to the witness Watkins and the respondents. At no stage, did he consider the question of possible unfairness to the State. As far as the respondents were concerned, he identified effectively four reasons for concluding there was unfairness to them. They were that:

- Watkins was criminally concerned in the events. He might try to shift blame and give inaccurate evidence;

- it was likely Watkins would, if leave were granted, still maintain he had no memory of events, and in those circumstances his evidence would "be of no value";

- there would be a risk of prejudice because the jury might act on assertions in questions even if instructed not to do so. The jury might think such assertions are true and begin to speculate;

- any version of events asserted in questions could not be tested by cross-examination.

In the context of the first ruling, his Honour also determined there was a risk of unfair prejudice to the respondents.

41 As to the first reason given, the involvement of Watkins in the events, the subject of the trial, was such that it would have attracted a direction to the jury under the Act, s165(1)(d). Under s192, the question of whether a direction could be given is a specific issue to be considered in itself, irrespective of any issue of unfairness (s192(2)(e)). His Honour, when he dealt with s192(2)(e), made no reference to the possibility of a direction under s165 or, it follows, the relevance the giving of such a direction might have to the exercise of his discretion. There was nothing identified in this case which might suggest the usual direction would not have been sufficient. There was nothing identified, apart from the fact of the witness's involvement in events and assumptions about the unreliability of the statements he might make as a consequence, which might suggest permitting cross-examination of him by the State would be unfair.

42 It is a relatively common occurrence for the State to call as a witness on a trial a co-offender who has already pleaded guilty and been sentenced. Co-offenders also, not uncommonly, are given a discount on their sentence in exchange for their co-operation, such co-operation to include giving evidence at trial against an accomplice. Our system of justice recognises the giving of such discounts. It must be acknowledged that, were leave to cross-examine such a witness to be routinely refused on the basis of unfairness said to arise because a witness was criminally involved in the events the subject of a trial, there would be little or no point in the Crown ever calling a co-offender to give evidence. The purpose of the practice of giving sentence discounts would largely be nullified if the usefulness of calling such a witness, with its attendant risks, were lost.

43 As to the second reason, even had Watkins maintained his memory loss under cross-examination, his evidence would have had value. That value would have lain in the capacity of trial counsel for the appellant to lay the groundwork for s43 requirements. It was not a case where the evidence which might have resulted would have no value at all.

44 As to the third reason, from the perspective of the respondents, at trial it was suggested that it would be "very unfair" to permit cross-examination which would result in the putting of large parts of the interview to Watkins. His Honour, from a reading of counsel's submissions which appear in the appeal book at VD 113 - 114, clearly adopted this and the submissions which followed. However, the submission ignores the fact that the Act clearly contemplates a mechanism by which the State needs to do just that if they wish to adduce evidence of a prior inconsistent statement. How can it be said to be unfair to do precisely what the Act provides (s43) may be done as a preliminary step to an application under s66? The intention of the Act is that exactly that process might need to occur.

45 Further, the jury would obviously have had a direction about what constituted evidence upon which they could rely and that questions were not evidence. There was nothing to suggest that the jury would not have had regard to such a direction. There seemed to have been an assumption that it would not.

46 As to the fourth reason, namely that the evidence could not be tested in cross-examination, had the witness maintained, even under cross-examination by the respondents' counsel, that he had no memory of the events, counsel for the respondents would not have been precluded from doing exactly what they did on the voir dire. That is, they could have sought to establish that Watkins' memory was so affected by his drug use that even his statement to police was highly suspect.

47 It is apparent from the submissions made by counsel for the respondent Shaw at trial, and the wording of his Honour's ruling in respect of the first application, that both were looking at, not just a leave application, but the issue of the admissibility of the prior inconsistent statement. Considerations of the impact of the Act, ss135 and 137, were being referred to. However, at the point in time the first ruling was made, no application had been made to place the prior statement of Watkins before the jury, no articulated objection had been made to such a course of action, and, in particular, no counsel had fully articulated the relevant considerations under those sections. There is no doubt that, had counsel for the appellant successfully obtained leave to cross-examine, and then applied to put the prior inconsistent statement before the jury, that last step would have been opposed and regard quite legitimately had to those sections.

48 However, it is not the eventual ruling of the learned trial judge about the admissibility of the prior inconsistent statement which is under challenge on this appeal. It is the manner in which his Honour dealt with the first leave application.

49 The learned trial judge was not referred to the decision in Adam's case. Instead he was pointed in the direction of Mayne. As a consequence, he did not have regard to the purpose of the Act, which was, in respect of how evidence of prior inconsistent statements should be dealt with, to alter the common law in a significant way. He failed to have regard, when considering the issue of unfairness by reference to the Act, s192(2)(d), to any unfairness which might have flowed to the State by its being prevented from complying with s43 requirements, that is, its being prevented from doing exactly what the Act intended could be done. His Honour also determined that any evidence which might flow from leave being given would have no value at all, when in fact it would have had significant value as far as the State was concerned, namely as providing the groundwork required by s43.

50 In all the circumstances, I am satisfied his Honour erred in the manner I have identified. As a consequence, the State has been denied at least the opportunity to present to the jury evidence which could have had a significant impact on the trial. The evidence clearly had significant probative value. As a consequence, a miscarriage of justice has occurred. I would give the appellant leave to appeal, and allow the appeal. I would also order that the acquittal of the respondents be quashed and that there be a re-trial.

Director of Public Prosecutions v Finnegan [2011] TASCCA 3

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Decision date

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Judgment (105 paragraphs)

Director of Public Prosecutions v Finnegan [2011] TASCCA 3 (21 April 2011)

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Cases Cited (1)