Ground 2
108 It is submitted for the appellant that the prior consistent statements made by Mr. Dupon were not admissible notwithstanding that the appellant's counsel at trial had extensively cross-examined upon some at least of the contents of the statements. It is contended that the statements made by Mr. Dupon in 2004 and the notes of his conferences with the Crown Prosecutor who interviewed him in advance of the trial, were not admissible by reason of the provisions of section 66 of the Evidence Act 1995 (NSW). It is submitted also that the effect of admitting that prior consistent material "would have been to give the evidence of the witness Dupon greater weight in the jury room". As a result, the appellant suffered real prejudice".
109 Mr. Dupon made four statements to the investigating police. The first of them was made on 18 January 2002; and the relevant parts of that statement are set out in paragraph 43 of these reasons. The second statement was made on 19 January 2002; and the relevant parts of that statement are set out at paragraph 44 of these reasons. The third statement was made on 18 March 2004; and the relevant parts of that statement are set out at paragraph 45 of these reason. The fourth and final statement was made on 19 March 2004; and the relevant contents of that statement are set out at paragraph 47 of these reasons. The contents of the Crown Prosecutor's notes have not been set out previously herein, but there is no need to reproduce the details of those notes in connection with a discussion of Ground 2.
110 Mr. Dupon was first cross-examined at trial by counsel then appearing for the appellant's co-accused, Mr. Grubb. Counsel cross-examined Mr. Dupon extensively upon various aspects of his statements. At two separate points during the cross-examination counsel sought to tender, on the first occasion the 2002 statements, and on the second occasion the 2004 statements. On each occasion counsel then appearing for the appellant objected to the tender upon the basis that the tenders were premature. The statements were marked, accordingly, for identification.
111 In due course Mr. Dupon was cross-examined by counsel then appearing for the appellant. That cross-examination, also, canvassed extensively material contained in the various statements that Mr. Dupon had made to the investigating police and about the circumstances of his pre-trial conference with a Crown Prosecutor.
112 Both cross-examiners tested Mr. Dupon closely and vigorously; but my reading of the transcript of the two cross-examinations does not suggest that it was ever put to Mr. Dupon, either expressly or by necessary implication, that he was simply fabricating his evidence-in-chief about having heard, in the immediate aftermath of the sound of the shot that killed Mr. Friend, the appellant and an unidentified male person carrying on a muted conversation in the court-yard of the appellant's home. What was put to Mr. Dupon, consistently and strenuously, was that his recollection of having heard such voices at that time was, quite simply, mistaken. In aid of that proposition, both cross-examiners stressed the absence from either of Mr. Dupon's 2002 statements of anything consistent with his evidence at trial about his having overheard the two voices in the court-yard.
113 The transcript of Mr. Dupon's cross-examination by counsel then appearing for the appellant, records at T 691 the conclusion of that cross-examination. There is no note of any actual re-tendering of the statements and notes; but there is recorded the following statement made by the Crown Prosecutor to the learned trial Judge:
"Your Honour, I join in the tender of all those four statements. My friend made an application. No doubt it can be argued at a later time. I also seek to tender much (sic: but this seems to be an incorrect transcription of "such") of the notes of the conference of the 18 March 2004 as appear on the bottom half of page 3. There is no number on the page but it's the third page of four."
114 His Honour asked counsel then appearing for the appellant whether he objected, in particular, to the proposed tendering of part of the pre-trial conference notes; and counsel replied simply: "It needs to be determined". Mr. Dupon's re-examination was thereupon continued and, shortly thereafter, he was excused.
115 That portion of the conference notes was then marked for identification.
116 There matters rested until two weeks or so later when the Crown was preparing to close formally its case.
117 In the context of interchanges as to what remained to be done before the formal closing of the Crown case, the following occurred:
HIS HONOUR: I think I prefer to deal with the Dupon material now. Precisely what is the material you wish to tender, Madam Crown?
CROWN PROSECUTOR: I wish to tender all of his statements and notes. They are all cross-examined upon. They were all cross-examined to suggest that, in effect, an across the board inconsistency by Mr. Lowe.
HIS HONOUR: I can understand why his statements fall into a class, but I am less sure about the notes The notes were cross-examined on.
CROWN PROSECUTOR: Yes, the notes were cross-examined on and they were produced and there was a suggestion that there was some inconsistency between those notes and the statement subsequently taken on the 18th or 19th of March. Your Honour will recall the circumstance was Mr. Dupon came, saw the Prosecutor and Miss Smith. Miss Smith was the notetaker. The notes are marked for identification amongst the papers. There was subsequently cross-examination by Mr. Lowe in relation to those notes - sorry, as soon as that matter became known a further statement was obtained. He was sent out and completed a further police statement which is his final statement and there was cross-examination in relation to apparent discrepancies.":[T 1449, 1450]
118 There was some discussion between his Honour and the Crown Prosecutor concerning the collating of the relevant materials, and then this:
"HIS HONOUR: Is it your case that the material cross-examined on and re-examined on does not sufficiently set out the relevant omissions or statements for the jury to determine the issue - well, the controversial issue?
CROWN PROSECUTOR: That's the primary count (sic: but, as it would seen, 'point'] of contention. …………………" [T 1450]
119 The relevant materials having been located and collated, the following occurred:
"HIS HONOUR: I think it is fair to say, is it not, that aside from the conversation that Mr. Dupon said he heard, his evidence is really not controversial. That is so, is it not, Mr. Lowe? There was some cross-examination about the brick, but you weren't disputing his account of what was said. As I remember your question, it was really what was intended or conveyed as a result of what he said.
LOWE: That is so, your Honour. The real issue here is the conversation and obviously his travailable (sic) movements throughout the house and what he saw as at a particular time. But that is of very short confine. It is not disputed he saw a light, the issue is what he saw.
HIS HONOUR: Here the point is how, and there was a great deal of evidence, how did it come about that in earlier statements this fact was not mentioned, then in a later statement it came to be mentioned and what was the sequence of events by which this material unfolded. That is the crucial point. I must say it does seem to me why it seems clear that the statements are relevant to that issue.
LOWE: Yes, they are relevant. Again, that's the issue in my respectful submission. I can't doubt that they are relevant. The issue is one of the credibility of this particular witness as to the recognition of the voices.
HIS HONOUR: And accordingly, in considering that credibility the way in which the material was disclosed. You rely on a mode of disclosure to show that it is unreliable. The Crown relies on the mode of disclosure to justify such a conclusion, when you actually look at the detail of how it came about it does not justify that conclusion. For myself I find it very difficult or I think the jury would find it very difficult to evaluate that matter without having the whole of the statement before them. Because, in a way, it is the subject matter of each entire conversation with the police which is crucial to understanding how the disclosure of the part came about.
LOWE: I can understand your Honour's position. It is relevant in that sense to understand the progress of these things and I will be relying on it in any event.
HIS HONOUR: Do you maintain your objection to the tender of this material?
LOWE: There are others - generally the documents are always tendered by the Crown, and I don't mean this in great disrespect, without any editing at all. There are other matters which were not the subject of any cross-examination and there should be some editing of this particular or these statements insofar as they may go to other issues which were not relevant to the determination of this case and weren't subject to cross-examination."
[T 1450, 1451 - Mr. Lowe was counsel appearing at trial for the present appellant.]
120 There followed a deal of discussion about the editing of various parts of the statements and notes; and then this interchange:
"HIS HONOUR: I won't exclude that but in all events that's not really why the Crown wants them. The Crown wants them to show when you have a look at the sequence of events together with the police officer's evidence as to how these statements came to be written and the subject matter with which they dealt, that it explains why and how Mr. Dupon's assertion about hearing voices came to be known and can be regarded as reliable. That's really what they go to. I think what you do need to do is identify the particular passages and let the Crown know. The Crown may agree or disagree. I will then rule. But I can tell you now that, aside from what I might call as inadmissible expressions of opinion which have not been elicited thus far from the witness, aside from those matters and I think there are not many of them, I understand you to be conceding the admissibility of the statements, but in all events sit seems to me they are plainly admissible.
LOWE: I have cross-examined at length and it may be plainly difficult for the jury to understand the cross-examination.
HIS HONOUR: I think so and it would be difficult to understand the police officers about the way in which the statements were sustained. That deals with Dupon with the exemption of the need perhaps to edit some small portion of those statements." [T 1453]
121 There seems to have ensued some editing of some of the contents of the statements and notes. The statements and notes were formally tendered, without any recorded formal objection, at T 1595. When the appellant's counsel at trial came, in due course, to make his final address to the jury, he dealt at length with Mr. Dupon's evidence. His submissions respecting Mr. Dupon's evidence occupy the whole or part of some 14 pages of transcript: T 1889-1902. The flavour of the submissions, read fairly as a whole, emerges in their very opening paragraphs:
"Before I discuss the evidence of Mr. Dupon it's clear in the Crown case that his credibility - I won't say this - his account is a very important aspect of the Crown case. It's important from Catherine Friend's perspective to scrutinise his account of the voices in the courtyard with care. Not only is it an important part of the Crown case, but the evidence of Mr. Dupon that he told the police from the very start about the voices in the courtyard has to be evaluated by reference to what others say in the call, the people he says he spoke to about this, other police officers.
By looking at the internal consistency of what he records in his witness statement about these issues, the unfolding nature of his witness statements is also another telling aspect which in my submission you could take into account in evaluating this evidence. His knowledge of what is omitted from the witness statement and his reaction in that regard, his contemporaneous account of what he heard and the accuracy of those statements and other issues associated with his account.
Now one can take into account, in evaluating the reliability of his observations about the sounds and the voices in the courtyard, the delay in disclosing the written form, going to the authorities and saying there were voices in the courtyard, and you can take into account my cross-examination of Mr. Dupon in determining his reliability in this regard………………. " [T 1889,1890]
122 Counsel's submissions continued with a careful and detailed canvass of aspects of Mr. Dupon's evidence at trial and of aspects of the contents of the various pre-trial statements that Mr. Dupon had made to the investigating police. Towards the end of this portion of his closing address, counsel put these propositions:
"……… Ultimately, I would be submitting to you when you come to evaluate Mr. Dupon's evidence, you will have the benefit of his Honour's directions of law regarding that evidence. Catherine Friend does not say that Mr. Dupon is necessarily wrong about his recollections, however, we don't concede it is right what he says. He may quite genuinely be mistaken about everything associated with this. Of course, he made no concession that he was mistaken. I have read to you when I put to him "you may be mistaken".
But by that stage, the stage of this trial, he has furnished the last witness' statement, the one I have just taken you to, the one of March 2004, where he records voices in the courtyard for the first time. Of course, he says to you, the Jury, he told all and sundry, in terms of police officers, three of them - well no, two of them, not Sergeant Hohnen - those police officers, that salient fact.
I will take you through the rest of the evidence in that regard. But I will be submitting to you this: that in the course of human affairs, common sense will dictate that an individual who has finally prepared a witness' statement about voices in the court-yard two years after the event may be extremely reluctant to admit any form of concession they are mistaken. It is very significant evidence in this trial against Catherine Friend. Let us not make any distinction in that regard. There would be, in my submission, a natural reluctance to admit any sort of mistake." [T 1900, 1901]
123 Counsel rounded out his submissions concerning the evidence of Mr. Dupon by putting to the jury the following submissions:
"So what we have is Mr. Dupon's evidence that he told police officers about this very important piece of information. Junee can't recall it and Sparkes says it wasn't volunteered or disclosed to him. And the first police officer to actually ask Mr. Dupon about his evidence, it is not disclosed, at least in terms of the note.
Common sense would dictate to you, even if you were investigating a murder such as this, that hearing voices in the court-yard after a discharge of a firearm is very significant and important and if told to you, you would remember it. In considering Mr. Dupon's evidence as a whole, I would ask you to consider he is mistaken about this, certainly about the identification of the sex of the individual, a male individual, mumbling in the court-yard. It can be TV in the middle of the night. It is a quiet night, apparently. He can hear the TV. Could be the dogs. Could be my client. You have heard my client's explanation, she was subject to cross-examination on the issue." [T 1902]
124 It is useful to complete the present survey of the relevant course of events at the trial, by noting the way in which his Honour dealt with Mr. Dupon's evidence in the summing-up. Early in the summing-up his Honour gave the jury the following general directions and observations:
"So then, this was no more than a recollection of something that took only a few fleeting seconds, to which he was not paying any particular notice and when he was going off to bed to resume the sleep that had been so rudely interrupted by the loud bang.
I make the common sense observation, members of the Jury, but of course it is a matter for you, that it is actually quite difficult when you are relying on hearing alone and even when you are paying attention, to place where any noise is coming from. When you are not really paying any attention to it, you have no reason to assess the reliability or question the accuracy of your immediate impression. In this respect, the impression that the voices were, as it were, following him along the corridor might be significant. It is a matter for you, because it might suggest some other source than the court-yard for them, since voices might well have been carried by the peculiarities of high paling fences and surrounding building. When that happens, when the sound is being bounced around, it might well seem to follow you, you may think. This is just part of ordinary, human experience.
Moreover, the power of assumption is very significant. If, during the few seconds in question, Mr. Dupon assumed that he was hearing voices from the court-yard, perhaps that was indeed where Catherine Friend's voice came from. It might be very difficult for him later to separate the assumption from the actual experience. Of course, once the idea is planted, probably unconsciously, it becomes by and large, does it not, the reality. It cannot be effectively re-examined or revisited. In other words, if you didn't pay attention at the time, later thinking about it doesn't help. You are still thinking about something that you didn't pay much attention to at the time.
So that in this case, upon this consideration, the evidence of Mr. Dupon that he heard the voices coming from the court-yard is truly his honest evidence. It is this difficult area between the experience and the opinion or belief that a witness has about it, that you need to explore in asking yourself whether it is safe to rely on Mr. Dupon's evidence, not that he heard voices but where those voices were coming from.
Now, the evaluation of these matters, it is a matter for you and I expect that I am merely bringing to your attention questions that you have already thought about and no doubt discussed. However, I feel that I would be very remiss in my duty if I did not impress upon you the need to be very cautious indeed about regarding the evidence of Mr. Dupon about hearing a conversation between the accused Catherine Friend and a male in the court-yard at 28 Wyattville Drive as being reliable enough to act upon. If, on the other hand, after thinking about the matter carefully and exercising the necessary caution that you must, given the whole of the circumstances and the importance of that question, you are persuaded that indeed he did hear that evidence, well that would be a very important factor which you would bring to bear in your consideration of the issues in this case, in particular the case of Catherine Friend." [SU 18, 19, 20 and 21]
125 Towards the end of the summing-up, and having made a carefully detailed canvass of Mr. Dupon's evidence at trial, his Honour said:
"Now, the parties rely in different ways on the way in which Mr. Dupon brought this conversation to the attention of police. I think the only matter that I want to refer you to specifically, because you have got all his statements, is the point that there was a door knock. The police had gone around asking people what they had seen and heard. Constable Hohnen was one of those police. I do not think his notebook is before you because it was extracted in oral evidence.
The important point, you might think, about his evidence is this. He is asking whether anything was, in particular, seen and heard, and Mr. Dupon talked about hearing the bang and does not talk about hearing the voices. Now, it may be that he simply overlooked it. It did not occur to him that it was important. There are a number of possible explanations. Nevertheless, it does seem that the first time he is asked about what he heard that might be important, he does not advert to the voices at all. That point is perhaps less significant than it might otherwise appear, though it's a matter for you, in that he doesn't mention that he heard Catherine Friend's voice and it's not disputed that indeed she did say something in the patio. The strange thing you might think, ladies and gentlemen, about this aspect of the evidence is this, especially when it comes to Mr. Dupon's statement to the police, and that is he assumed; he told you that conversation was between, he had heard a conversation between Jason and Catherine, but he learnt very early in the morning that Jason was shot and that that was the bang that he heard or almost certainly the bang that he heard, yet he did not, it seems, realise that it followed that the voice that he heard could not be that of Jason Friend. He simply never made the link." [SU 81, 82, 83]
126 Against the whole of the foregoing background, it is necessary to attend, next, to sections 45 and 108 of the Evidence Act.
127 Section 45 provides, relevantly:
"(1) This section applies if a party is cross-examining or has cross-examined a witness about:
(a) a prior inconsistent statement alleged to have been made by the witness that is recorded in a document; ………
(2) If the court so orders or if another party so requires, the party must produce:
(a) the document; or
(b) such evidence of the contents of the document as is available to the party to the court or to that other party.
(3) The court may:
(a) examine a document or evidence that has been so produced; and
(b) give directions as to its use; and
(c) admit it even if it has not been tendered by a party.
(4) Sub-section (3) does not permit the court to admit a document or evidence that is not admissible because of Chapter 3.
(5) The mere production of a document to a witness who is being cross-examined does not give rise to a requirement that the cross-examiner tender the document."
128 Section 108 provides relevantly:
"…………..
(3) The credibility rule does not apply to evidence of a prior consistent statement of a witness if:
(a) evidence of a prior inconsistent statement of the witness has been admitted; or
(b) it is or will be suggested (either expressly or by implication) that evidence given by the witness has been fabricated or re-constructed (whether deliberately or otherwise) or is the result of a suggestion; and the court gives leave to adduce the evidence of the prior consistent statement."
129 The two statements made by Mr. Dupon in 2002 were, in my opinion, prior inconsistent statements in the sense that they did not record, at times immediately proximate to the date of the shooting, the post-shooting murmured conversation that Mr. Dupon subsequently said, both in subsequent statements and in his evidence at trial, he had heard in the court-yard of the appellant's home. There can be no disputing that the appellant's counsel at trial cross-examined Mr. Dupon, properly and closely, about the manifest inconsistency between what he was saying in his evidence about that conversation, and the complete absence of any reference to the conversation in either of those two contemporaneous 2002 statements.
130 It was, in my opinion, correct for the trial Judge to admit those two statements into evidence. The admission of the statements was not proscribed by any of the relevant provisions of Chapter 3. It was fair to admit the statements because it was important for the jury to be in a position to see for themselves, and to assess for themselves, the overall cast of each of the statements: that is to say, both the whole of the contents of the statements and the circumstances in which the statements had been, on the one hand obtained by the investigating police, and on the other hand supplied by Mr. Dupon.
131 It was, in my opinion, correct for the trial Judge to admit the two subsequent 2004 statements and, as well, the relevant portions of the pre-trial prosecution conference notes. The admission of the two 2002 statements satisfied the requirements of section 108(3)(a). The course of cross-examination of Mr. Dupon by the appellant's counsel at trial was, in my opinion, such as to bring the case within section 108(3)(b), not because of any suggestion of fabrication; but because the suggestion was clearly made that Mr. Dupon was mistaken in his recollection of the particular conversation; and the course of the cross-examination to that effect suggested, in my opinion, at least by implication, that the mistake manifested a reconstruction by Mr. Dupon of a fleeting and fragmentary instant of conversation which Mr. Dupon honestly believed he had overheard, and which he has reconstructed, honestly but mistakenly, from memory.
132 It was obvious from the course of the trial that the evidence of Mr. Dupon was, to say the very least, of the greatest significance to the piecing together of the skein of circumstances upon which the Crown's circumstantial case depended. It was, beyond any questioning, proper to test with the utmost permissible rigour the reliability of Mr. Dupon's evidence, in particular, of the conversation which he said he overheard. Fairness required, however, that in the circumstances of this case the jury should have placed before it not only extracts of the particular statements and notes, but the entire sequence of the making of the statements and of the notes. Placing the whole of the material before the jury ensured, for one thing, that particular alleged inconsistencies about which Mr. Dupon had been cross-examined could be assessed fairly by reference to the entirety of the context of which they formed a part. The form and the contents alike of each of the documents was capable of giving relevant and proper assistance to the jury in the making by the jury of a fair and balanced overall assessment of how Mr. Dupon had come to state at various times the various matters respectively recorded in his statements and in the pre-trial conference notes.
133 In my opinion there was, in any event, no prejudice to the appellant at her trial by reason of the admission of these statements and notes. The learned trial Judge said not very much at all about the statements as particular items of evidence; and by the time his Honour did deal with that topic, he had already given the jury, clearly and properly in my respectful opinion, strong and precise warnings of the care which the jury must properly take in assessing the reliability of, in particular, Mr. Dupon's evidence about the conversation which he said he had overheard in the immediate aftermath of the firing of the fatal shot.
134 What has been said thus far does not overlook the specific reference in the appellant's submissions to section 66 of the Evidence Act.