Inspector Stephen Campell v James Gordon Hitchcock - [2003] NSWIRComm 436 - NSWIRComm 2003 case summary — Zoe

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Inspector Stephen Campell v James Gordon Hitchcock

[2003] NSWIRComm 436

Industrial Relations Commission (NSW)|2003-07-01|Before: Walton J, Hunt CJ, McHugh J, Mr P, Mr J

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Source facts

Court

Industrial Relations Commission (NSW)

Decision date

2003-07-01

Before

Walton J, Hunt CJ, McHugh J, Mr P, Mr J

Source

Original judgment source is linked above.

Judgment (312 paragraphs)

[1]

CITATION : Inspector Stephen Campell v James Gordon Hitchcock [2003] NSWIRComm 436 PROSECUTOR: WorkCover Authority of New South Wales (Inspector Stephen Campbell) PARTIES : DEFENDANT: James Gordon Hitchcock FILE NUMBER: IRC 5660 & 5661 of 2001 CORAM: Walton J Vice-President Evidence - Deposition - Witness gave evidence in coronial inquiry into death of deceased - Evidence in coronial proceedings given both as a statement and as a deposition - Evidence tendered under s 112 of the Criminal Procedure Act - Whether evidence given in coronial proceedings a deposition for the purposes of the Criminal Procedure Act - Whether the evidence given in the coronial proceedings was otherwise admissible - Interaction between the Criminal Procedure Act and the Evidence Act - Held the exclusionary provisions of Pt 3.11 of the Evidence Act apply to evidence tendered in reliance upon the facilitative provisions of the Criminal Procedure Act - Held evidence was a deposition for the purposes of the Criminal Procedure Act and was otherwise admissible. CATCHWORDS : Evidence - Operation of Pt 3.11 of the Evidence Act - Assessment of probative value - Whether assessment of reliability is a matter affecting the assessment of probative value - Tension between judgment of Hunt CJ at CL in R v Carusi and McHugh J in Papakosmas considered - Prejudice - Ruling on objections. Crimes Act 1900 s 409(repealed) LEGISLATION CITED : Criminal Procedure Act 1986 s 112 and 116 (repealed) Evidence Act 1995 Adam v The Queen (2001) 207 CLR 96 Attorney General of New South Wales v Jackson (1906) 3 CLR 730 Domican v The Queen (1992) 173 CLR 555 Festa v The Queen (2001) 208 CLR 593 Gorman v Fitzpatrick (1987) 32 A Crim R 330 Mendham & Foster (1993) 71 A Crim R 382 Papakosmas v The Queen (1999) 196 CLR 297 R v Attard, R v Mifsud [1970] 1 NSWR 750. R v BD (1997) 94 A Crim R 131 R v Blick (2000) 111 A Crim R 326 R v Brotherton (1992) 29 NSWLR 95 R v Carusi (1997) 92 A Crim R 52 R v Duke (1979) 22 SASR 46 R v GK (2001) 53 NSWLR 317 R v Gover (2000) 118 A Crim R 8 CASES CITED : R v Grant (2001) 127 A Crim R 124 R v Le (2002) 54 NSWLR 474 R v Marshall (2000) 113 A Crim R 190 R v Serratore (1999) 48 NSWLR 101 R v Sinanovic (1992) 67 A Crim R 230 R v Singh-Bal (1997) 92 A Crim R 397 R v Stackelroth (1996) 86 A Crim R 438 R v Suteski (2002) 56 NSWLR 182 R v Tugaga (1994) 74 A Crim R 190 R v Yates, Parry, Hyland, Powick [2002] NSWCCA 520 Reg v Burrell [2001] NSWSC 120 Reg v Farquhar (unreported, Court of Criminal Appeal, 29 May 1985) Reg v Lynch [1979] 2 NSWLR 775 Rogers v The Queen (1994) 181 CLR 251 Scott v The Queen [1989] 1 AC 1242 Smith v The Queen (2001) 206 CLR 650

[15]

Exhibit U - transcript of proceedings before a coronial inquest into the death of Darri Dennis Haynes before Coroner Milovanovich, dated 11 June 2002. This transcript had attached a "certificate of transcript" completed and signed by the relevant sound reporter(s), indicating that the "within transcript is a correct transcript of the depositions sound recorded at the New South Wales State Coroner's Court, Grafton in the matter of Inquest into the death of Darri Dennis Haynes on Tuesday 11 June 2002". Exhibit V - transcript of proceedings before a coronial inquest into the death of Darri Dennis Haynes before Coroner Milovanovich, dated 12 June 2002. This transcript had attached a "certificate of transcript" completed and signed by the relevant sound reporter(s), indicating that the "within transcript is a correct transcript of the depositions sound recorded at the New South Wales State Coroner's Court, Grafton in the matter of Inquest into the death of Darri Dennis Haynes on Wednesday 12 June 2002". Exhibit W - a statement of a Vivian Lear - a sound reporter employed by the reporting services branch of the Attorney General's Department, dated 3 June 2003, annexing two pages of "errata" to the transcript found in exhibits U and V and, with the addition of the errata pages, certifying the transcript of those days to be "an accurate record of the proceedings". Exhibit X - a two page statement of Leonard Duncan McKellar, dated 3 September 1999, identified as having been made at the Grafton Police Station in relation to the matter of "M/Veh accident at Tyndale 1.9.99 involving Haynes". Exhibit Y - an affidavit of Vivian Lear dated 23 June 2003. The affidavit had annexed to it three annexures and one exhibit. Annexure A was a repeat of the material referred to in exhibit W - that is, errata pages as to certain aspects of exhibits U and V. Annexure B was the transcript of the tape recording of proceedings on 12 June 2002 identified on page 17 of Exhibit V as "LUND READ STATEMENT TO COURT". Exhibit 1 to the affidavit of Ms Lear was separately marked exhibit Z on the voir dire. I note in particular that the affidavit of Ms Lear states as follows: I have compared the transcript and Annexures "A" and "B" to the tape recordings of the matter of Darri Dennis Haynes in Grafton before C Milovanovick, and I am able to say that the transcript page 1 on 11 June 2002 and pages 1, 17 to 25 containing the evidence of Mr Leonard McKellar on 12 June 2002, together with Annexures "A" and "B" are an accurate record of the proceedings.

[30]

13 There are a number of legislative provisions that fall for consideration in this decision. The first of those are sections112 and 116 of the Criminal Procedure Act 1986. Those sections, insofar as they are relevant to this determination (that is, as they stood prior to amendment in 2003 by the Criminal Procedure Amendment (Justices and Local Courts) Act 2001: the relevant provisions are now to be found in Part 4 of Chapter 6 of the Criminal Procedure Act and are operative from 7 July 2003 - see Gazette No. 104, 27/6/2003, p. 5976) were in the following terms: 112. Depositions tendered by prosecution (1) A deposition may be admitted as evidence for the prosecution at the trial of an accused person on proof on oath of each of the following matters: (a) that the deponent: (i) is dead, or so ill as not to be able to travel or to give evidence without a risk of endangering the deponent's life, or (ii) is absent from Australia, (b) that the deposition was recorded: (i) by or in the presence of the justice before whom it was taken, and (ii) in the presence of the accused person or during any period when the accused person (having been excused under section 41 (1B) of the Justices Act 1902 ) was absent, (c) that the accused person, or his or her counsel, had full opportunity to cross-examine the witness, or that the accused person (having been excused under section 41 (1B) of the Justices Act 1902 ) was absent when the deposition was taken and was not represented by counsel. (2) The deposition: (a) must be in writing, signed by the justice by or before whom the deposition was taken, or (b) must be in the form of a written transcript of matter recorded by means, other than writing, authorised by law for the recording of depositions. (3) If the deposition is in the form of a written transcript referred to in subsection (2) (b), it must be proved on oath: (a) that the record so made is a true record of the matter so deposed, and (b) that the transcript of the record is a correct transcript of that record. (4) If it appears from the deposition: (a) that it was made in the presence of the accused person, and (b) that the accused person, or his or her counsel, had full opportunity to cross-examine the witness, the deposition is taken to have been so made and the accused person, or his or her counsel, is taken to have had such an opportunity, unless proved to the contrary. (5) If it appears from the deposition: (a) that it was made while the accused person (having been excused under section 41 (1B) of the Justices Act 1902 ) was absent, and (b) that the accused person was not represented by counsel at that time, the deposition is taken to have been so made and the accused person is taken to have not been represented by counsel, unless proved to the contrary. (6) In this section, "justice" includes a coroner holding office under the Coroners Act 1980 . … 116. Written statements admitted in committal proceedings (1) This section applies to: (a) a written statement the whole or any part of which has been admitted as evidence under section 48A of the Justices Act 1902 , including any part of the statement that has been rejected under section 48F of that Act, (b) a written statement the whole or any part of which has been tendered as evidence under section 51A of the Justices Act 1902 , referred to in this section as a "prescribed written statement". (2) Except in so far as the court otherwise orders, a prescribed written statement may be admitted as evidence for the prosecution at the trial of the accused person on proof on oath that the person who made the statement: (a) is dead, or so ill as not to be able to travel or to give evidence without a risk of endangering the person's life, or (b) is absent from Australia. (3) If the accused person so requires, a prescribed written statement may be admitted as evidence in the accused person's defence at the trial of the accused person whenever: (a) the person who made the statement: (i) is dead, or so ill as not to be able to travel or to give evidence without a risk of endangering the person's life, or (ii) is absent from Australia, or (b) the committing justice has certified, before committing the person for trial, that in the opinion of the justice: (i) the evidence of the person who made the statement is material, and (ii) the person is willing to attend the trial, but is unable to bear the expense of attendance. (4) A statement may not be admitted as evidence on the ground referred to in subsection (3) (b) if the person who made the statement has, in due time before the trial, been subpoenaed by the Crown. (5) A prescribed written statement made in respect of an indictable offence may be admitted as evidence on the trial of the accused person for any other offence, whether of the same or of a different kind, if it would be admissible on his or her trial for the offence in respect of which it was made. (6) If at a trial it appears to the court that the whole or any part of a prescribed written statement is inadmissible, the court may reject the statement or that part, as the case may be, as evidence.

[34]

16 The predecessor to the provisions of Division 5 of Part 4 of the Criminal Procedure Act (which include ss112 and 116) are to be found in s409 of the Crimes Act 1900 (Part 4 of the Criminal Procedure Act, entitled "Criminal Procedure Generally", was inserted into that statute by s4 (and item [31] of Schedule 2) of the Crimes Legislation Amendment (Sentencing) Act No. 94 of 1999 (s5, together with item [14] of Part 2 of Schedule 3 of that amending Act repealed s409 of the Crimes Act.). That section is discussed in a number of the authorities referred to later in this decision and it is useful to set it out in full. That section was in the following terms: 409. Depositions may be read as evidence for prosecution etc (1) A deposition of a witness may be read as evidence for the prosecution at the trial of the accused upon proof: (a) on oath that the witness is dead, or so ill as not to be able to travel or to give evidence, or so ill as not to be able to travel or to give evidence without a risk of endangering the life of the witness, or is absent from Australia; and (b) (i) that the deposition, if taken down in writing and purporting to be signed by the Justice or coroner by or before whom it purports to have been taken, was taken in the presence of the accused or during any period when the accused, having been discharged under section 41 (1B) of the Justices Act 1902, was absent; or (ii) where the deposition is in the form of a transcript of the record made, by any means, other than writing, authorised by law for the taking of the deposition, of the matter deposed by the witness in proceedings before a Justice or coroner, that the record so made is a true record of the matter so deposed and was made in the presence of the accused or during any period when the accused, having been discharged under section 41 (1B) of the Justices Act 1902, was absent and the transcript is a correct transcript of the record so made; and (c) that the accused, or his or her counsel or attorney, had a full opportunity of cross-examining the witness, or the accused, having been discharged under section 41 (1B) of the Justices Act 1902, was absent when the deposition was taken and was not represented by counsel or attorney: Provided that no such deposition as is referred to in paragraph (b) (i) shall be so read as evidence if it be proved that it was not in fact signed by the Justice or coroner purporting to sign it. (2) The deposition of any witness called and examined before a Justice or coroner by and on behalf of the accused may, if the accused so require, be read as evidence in his or her defence at the trial whenever: (a) the witness is dead, or so ill as not to be able to travel or to give evidence, or so ill as not to be able to travel or to give evidence without a risk of endangering the life of the witness, or is absent from Australia; or (b) the Justice or coroner who committed the accused or held him or her to bail has certified before the committal or holding to bail that the evidence of the witness is material, and that the witness is, in his or her belief, willing to attend the trial, but is unable to bear the expense of attendance. Provided that no deposition may be so read upon the ground mentioned in paragraph (b) if the witness has, in due time before the trial, been subpoenaed by the Crown. (3) Depositions taken on the preliminary or other investigation of any charge of felony or misdemeanour, may be read as evidence on the trial of the accused for any other offence, although of a higher or different nature, if they would be admissible on his or her trial for the offence in respect of which they were taken; and such depositions may be proved in the same manner as if the accused were on trial for that offence. (4) The reference in subsection (1) to "deposition" where firstly occurring and any reference in subsections (2) and (3) to "deposition" or "depositions" shall, where the deposition or depositions was or were recorded by any means, other than writing, authorised by law for the taking of the deposition or depositions, be read and construed as a reference to a transcript, certified in the manner prescribed by regulations made under the Justices Act 1902, of the deposition or depositions as so recorded. (5) For the purposes of subsection (1), unless it is proved to the contrary: (a) a deposition, or a deposition in the form of a transcript, of the evidence of a witness shall be deemed to have been taken or made in the presence of the accused, or during any period when the accused, having been discharged under section 41 (1B) of the Justices Act 1902, was absent; and (b) the accused or his or her counsel or attorney shall be deemed to have had a full opportunity of cross-examining the witness, or the accused, having been discharged under section 41 (1B), shall be deemed to have been absent when the deposition was taken and not represented by counsel or attorney, if it appears from the deposition that it was so taken or made, and that the accused or his or her counsel had such an opportunity or was so absent and not represented by counsel or attorney, as the case may be. (6) For the purposes of subsection (1) (b) (ii), where a deposition is in the form of a transcript of the record, unless it is proved to the contrary, the record shall be deemed to be a true record of the matter deposed, and the transcript shall be deemed to be a correct transcript of the record if, in the case of a transcript of a record: (a) made in shorthand notes, the transcript is identified by, and signed in the handwriting of, the person purporting to have made the shorthand notes; or (b) made by any other means (other than writing) authorised by law for the taking of a deposition, the transcript is certified in the manner prescribed by regulations made under the Justices Act 1902. (7) Except in so far as the Judge otherwise orders, a prescribed statement may be read as evidence for the prosecution at the trial of the accused upon proof on oath that the person who made the statement is dead, or so ill as not to be able to travel or to give evidence, or so ill as not to be able to travel or to give evidence without a risk of endangering the life of the person, or is absent from Australia. (8) A prescribed statement may, if the accused so requires, be read as evidence in the accused's defence at the trial of the accused whenever: (a) the person who made the statement is dead, or so ill as not to be able to travel or to give evidence, or so ill as not to be able to travel or to give evidence without a risk of endangering the life of the person, or is absent from Australia; or (b) the Justice who committed the accused or held the accused to bail has certified before the committal or holding to bail that the evidence of the person who made the statement is material, and that that person is, in the belief of the Justice, willing to attend the trial, but is unable to bear the expense of attendance, but no statement may be so read on the ground mentioned in paragraph (b) if the person who made the statement has, in due time before the trial, been subpoenaed by the Crown. (9) A prescribed statement made in respect of any charge of felony or misdemeanour may be read as evidence on the trial of the accused for any other offence, although of a higher or different nature, if the contents of the statement would be admissible on the trial of the accused for the offence in respect of which it was made. (10) Where at a trial it appears to the Judge that the whole or any part of a prescribed statement is inadmissible, the Judge may reject the statement or that part, as the case may be, as evidence. (11) In this section, "prescribed statement" means: (a) a written statement the whole or a part of which was admitted as evidence under section 48A of the Justices Act 1902 and includes a part of any such statement rejected under section 48F of that Act; or (b) a written statement the whole or a part of which was tendered as evidence on a plea of guilty under section 51A of the Justices Act 1902.

[35]

17 Several sections of the Evidence Act warrant attention. Significant amongst them are ss55, 56, 59, 72 and 142, which are in the following terms: 55. Relevant evidence (1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding. (2) In particular, evidence is not taken to be irrelevant only because it relates only to: (a) the credibility of a witness, or (b) the admissibility of other evidence, or (c) a failure to adduce evidence. 56. Relevant evidence to be admissible (1) Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding. (2) Evidence that is not relevant in the proceeding is not admissible. … 59. The hearsay rule - exclusion of hearsay evidence (1) Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that the person intended to assert by the representation. (2) Such a fact is in this Part referred to as an asserted fact. (3) Subsection (1) does not apply to evidence of a representation contained in a certificate or other document given or made under regulations made under an Act other than this Act to the extent to which the regulations provide that the certificate or other document has evidentiary effect. … 72. Exception: contemporaneous statements about a person's health etc The hearsay rule does not apply to evidence of a representation made by a person that was a contemporaneous representation about the person's health, feelings, sensations, intention, knowledge or state of mind. … 142. Admissibility of evidence: standard of proof (1) Except as otherwise provided by this Act, in any proceeding the court is to find that the facts necessary for deciding: (a) a question whether evidence should be admitted or not admitted, whether in the exercise of a discretion or not, or (b) any other question arising under this Act, have been proved if it is satisfied that they have been proved on the balance of probabilities. (2) In determining whether it is so satisfied, the matters that the court must take into account include: (a) the importance of the evidence in the proceeding, and (b) the gravity of the matters alleged in relation to the question.

[37]

19 Various provisions of the Coroners Act 1980 are also relevant to this decision. These include ss19, 22(1), 32, 33, 34 which provisions are in the following terms: 19. Procedure at inquest or inquiry involving indictable offence (1) This section applies if: (a) before an inquest or inquiry commences or at any time during the course of an inquest or inquiry, it appears to the coroner that a person has been charged with an indictable offence, or (b) at any time during the course of an inquest or inquiry, the coroner is of the opinion that, having regard to all the evidence given up to that time: (i) the evidence is capable of satisfying a jury beyond reasonable doubt that a known person has committed an indictable offence, and (ii) there is a reasonable prospect that a jury would convict the known person of the indictable offence, and the indictable offence is one in which the question whether the person charged or the known person caused the death or suspected death or the fire or explosion is in issue. (c)--(e) (Repealed) (1A) If this section applies to an inquest or inquiry as provided by subsection (1) (a), the coroner may commence the inquest or inquiry, or continue it if it has commenced, but only for the purpose of taking evidence to establish: (a) in the case of an inquest---the death, the identity of the deceased and the date and place of death, or (b) in the case of an inquiry---the date and place of the fire or explosion, and, after taking that evidence, or if that evidence has been taken, must terminate the inquest or inquiry and, if there is a jury, must discharge the jury. (1B) If this section applies to an inquest as provided by subsection (1) (b), the coroner may continue the inquest and: (a) record under section 22 (1) the findings of the coroner or, if there is a jury, the verdict of the jury, or (b) after taking evidence to establish the death, the identity of the deceased and the date and place of death---terminate the inquest and, if there is a jury, discharge the jury. (1C) If this section applies to an inquiry as provided by subsection (1) (b), the coroner may continue the inquiry and: (a) record under section 22 (2) the findings of the coroner or, if there is a jury, the verdict of the jury, or (b) after taking evidence to establish the date and place of the fire or explosion---terminate the inquiry and, if there is a jury, discharge the jury. (2) The coroner is required to forward to the Director of Public Prosecutions the depositions taken at an inquest or inquiry to which this section applies together with a statement that is signed by the coroner and specifies, in the case of an inquest or inquiry referred to in subsection (1) (b), the name of the known person, and the particulars of the offence, so referred to. (3) (Repealed) … 22. Finding of coroner or verdict of jury to be recorded (1) The coroner holding an inquest concerning the death or suspected death of a person shall, at its conclusion or termination, record in writing his or her findings or, if there is a jury, the jury's verdict, as to whether the person died and, if so: (a) the person's identity, (b) the date and place of the person's death, and (c) except in the case of an inquest continued or terminated under section 19, the manner and cause of the person's death. … 32. Representation at inquests or inquiries (1) Any person who, in the opinion of the coroner holding an inquest or inquiry, has a sufficient interest in the subject-matter of the inquest or inquiry may by leave of the coroner appear in person at the inquest or inquiry or be represented thereat by counsel or a solicitor, and may examine and cross-examine any witnesses on matters relevant to the inquest or inquiry. (2) It is to be presumed that a relative of the person into whose death or suspected death an inquest is being held has a sufficient interest in the subject-matter of the inquest and the coroner must grant such a person leave under this section, unless the coroner is satisfied that there are exceptional circumstances that justify the coroner refusing leave. (3) When an inquest or inquiry is held before a coroner with a jury: (a) a person appearing, and a barrister or solicitor representing a person, at the inquest or inquiry is entitled to make an opening and a closing address to the jury, and (b) the person assisting the coroner may make an opening and a closing address to the jury and in addition has a right of reply in respect of any closing address made pursuant to paragraph (a). 33. Rules of procedure and evidence A coroner holding an inquest or inquiry shall not be bound to observe the rules of procedure and evidence applicable to proceedings before a court of law, but no witness shall, except in accordance with section 33AA, be compelled to answer any question which criminates the witness, or tends to criminate the witness, of any offence. 34. Depositions to be taken (1) The deposition of every witness at an inquest or inquiry shall be recorded by means of writing, shorthand, stenotype machine, sound-recording apparatus or any other means prescribed for the time being by regulations made under section 154 (1A) (b) of the Justices Act 1902 . (2) Where, for the purposes of subsection (1), the deposition of a witness is recorded by means of writing, it shall be read over either to or by the witness, as the coroner holding the inquest or inquiry may direct, and be signed by the witness and by the coroner. (3) (Repealed) (4) Any person who: (a) shows cause sufficient in the opinion of the appropriate official why that person should be supplied with a copy of the coroner's file (or a part of that file) in respect of any matter, and (b) pays a fee calculated at the rate prescribed by the regulations for the time being in force under section 154 of the Justices Act 1902 for copies of depositions, is to be supplied with a copy of the coroner's file (or a part of that file) by the clerk of the Local Court where, or nearest to the place where, the inquest or inquiry was held or would have been held had it not been dispensed with. (5) In this section: "appropriate official" means, in relation to a particular matter, the coroner who held, or dispensed with the holding of, the inquest or inquiry to which the matter relates or (in the absence of that coroner) the clerk of the Local Court where, or nearest to the place where, that inquest or inquiry was held or would have been held had it not been dispensed with. "coroner's file" means the documents (including the depositions of witnesses) that form part of the file kept by a coroner in respect of a death, suspected death, fire or explosion. (6) The coroner who holds or dispenses with the holding of an inquest or inquiry, or who decides not to commence or terminates an inquest or inquiry under section 19, may, by notation on the coroner's file on the matter, direct that a copy of the whole or a particular part of the file is not to be supplied under this section. A copy of a coroner's file or of any part of the file is not to be supplied in contravention of such a direction. (7) A direction by a coroner under subsection (6) must include a statement of the coroner's reasons for the direction. A copy of that statement is to be made available to any person who applies to be supplied with a copy of the coroner's file or any part of it. (8) (Repealed)

[120]

92 That provision, that is s 409, had an extensive history which, for present purposes, need not be canvassed in detail. It is sufficient to take as an appropriate starting point, a consideration of the section as found in the judgment of Street CJ in Lynch, with whom Reynold JA and Nagle CJ at CL agreed. In that judgment, the Court of Criminal Appeal dealt with an appeal from a decision of a trial judge who, having regard to the judgment of Griffiths CJ in Attorney General of New South Wales v Jackson (1906) 3 CLR 730, had concluded that once the "preliminary requisites" provided in s 409(1) had been met, he was "obliged to admit the deposition" of a witness, obtained at the defendant's committal, in circumstances where the relevant witness was so ill as to not be able to travel to the subsequent trial. Street CJ, having canvassed the circumstances in which the issue arose at first instance, the relevant portions of s 409 and the reasoning of the trial judge, stated (at 778): Looking first of all at s. 409 itself, it is to be observed that the opening portion of s. 409 (1) is cast in terms appropriate to confer upon the Crown the right to read a deposition as evidence, if the ingredients set out in the ensuing portion of the subsection are found to be established. The section is not cast in terms such as, by way of contrast, are to be seen in s. 408, which provides that a declaration "shall be admissible in evidence", nor is it cast in terms which, again by way of contrast, are to be seen in s. 412, where it is provided that evidence as to character "shall, in all cases, be received" as evidence. Provisions such as ss. 408 and 412 are clearly enough directed by their very terms to a different concept from a section such as s. 409. Section 409 (1) is cast, in the opening portion, in terms directed to the Crown and confers, I repeat, the right to read the deposition, equally as s. 409 (2) confers the right on the accused to read as evidence in his defence a deposition falling within the requirements of the latter subsection. Upon this approach, there is no discretion available to the presiding judge, the only relevant inquiry being whether the factual ingredients set out in the section are proved. Reference to authority confirms the view which I have just indicated; although, as will appear, there is some authority to the contrary. The principal authority in favour of the proposition that there is no discretion is the decision to which Judge Hicks referred: Attorney-General of New South Wales v. Jackson (1906) 3 CLR 730 at 743. [having set out a passage from the judgment of Griffiths CJ, and having referred to the judgment's of other members of the Court in that matter, his Honour continued:] It is to be observed that the conclusion expressly stated by Griffith C.J. in the passage that has been quoted is that the section itself "lays down the only conditions to be required by the Judge in considering the question of admissibility". There is no room to be found within the approach adopted by the High Court for any ultimate residual discretion remaining with the trial judge apart, of course, from the ordinary principle governing admissibility, where it is contended that the undue prejudicial significance of the proffered evidence outweighs its probative value.

[126]

98 Having referred to a series of authorities relating to the exercise of discretion to exclude evidence, the Court stated (at 1258 - 1259): In the light of these authorities their Lordships are satisfied that the discretion of judge to ensure a fair trial includes a power to exclude the admission of a deposition. It is, however, a power that should be exercised with great restraint. The mere fact that the deponent will not be available for cross-examination is obviously an insufficient ground for excluding the deposition for that is a feature common to the admission of all depositions which must have been contemplated and accepted by the legislature when it gave statutory sanction to their admission in evidence. If the courts are too ready to exclude the deposition of a deceased witness it may well place the lives of witnesses at risk particularly in a case where only one witness has been courageous enough to give evidence against the accused or only one witness has had the opportunity to identify the accused. It will of course be necessary in every case to warn the jury that they have not had the benefit of hearing the evidence of deponent tested in cross-examination and to take that into consideration when considering how far they can safely rely on the evidence in the deposition … Provided these precautions are taken it is only in rare circumstances that it would be right to exercise the discretion to exclude the deposition. Those circumstances will arise when the judge is satisfied that it will be unsafe for the jury to rely upon the evidence in the deposition. It will be unwise to attempt to define or forecast in more particular terms the nature of such circumstances. This much however can be said that neither the inability to cross-examine, nor the fact that the deposition contains the only evidence against the accused, nor the fact that it is identification evidence will of itself be sufficient to justify the exercise of the discretion. It is the quality of the evidence in the deposition that is crucial.

[127]

99 The key to the construction of s 409(1) was to be found in the opening words of that section - that is, in the phrase "a deposition of a witness may be read as evidence for the prosecution at the trial …". As can be seen from the passage of Street CJ's judgment in Lynch set out above, "the opening portion of s. 409 (1) [was] cast in terms appropriate to confer upon the Crown the right to read a deposition as evidence, if the ingredients set out in the ensuing portion of the subsection are found to be established" (my emphasis - see also Gorman v Fitzpatrick at 337 and Stackelroth at 441). The opening words of s112 are identical to those considered by Street CJ in Lynch. I can see no reason either in the statutory language or in its context or by reference to the authorities bearing upon the operation of s 409(1) that would lead to a conclusion other than that which would have s112 conform with the law developed in relation to its predecessor provisions - that is, s112 confers a right on the prosecutor to read "a deposition" at the trial of a defendant, once the matters identified in s112(1) have been satisfied, subject to the exercise of the "general discretion" to refuse to admit evidence where it is necessary in order to ensure a fair trial (but with no residual discretion of the type contemplated in s116 of the Criminal Procedure Act). 100 In this regard, I note the discussion of this "general discretion" as expressed in the judgment of Hunt CJ at CL in Stackelroth where his Honour stated (at 439-440): As to the second of those issues, I agree with Allen J that that general discretion remains applicable to any evidence or statement otherwise admissible pursuant to s409. That general discretion covers not only the case where the prejudicial effect of the evidence outweighs its probative value ( Rex v Christie [1914] AC 54S at 559, 564; Noor Mohamed v The King [1949] AC 182 at 192; Driscoll v The Queen (1977) 137 CLR 517 at 541; Phillips v The Queen (1985) 159 CLR 45 at 51; Regina v Masters (1992) 26 NSWLR 450 at 479), but also where the use of the evidence would result in an unfair trial for the accused ( McDermott v The King (1948) 76 CLR 501 at 506-507, 513-515; The King v Lee (1950) 82 CLR 133 at 150-151; Macpherson v The Queen (1981) 147 CLR 512 at 519-520; Cleland v The Queen (1982) 1S1 CLR 1 at 18,31,34; Phillips v The Queen (at 51); Foster v The Queen (1993)113 ALR 1 at 8-10,13-14,19-20) or where the evidence was unlawfully or improperly obtained: The Queen v Ireland (1970) 126 CLR 321 at 334-33S; Bunning v Cross (1978) 141 CLR 54 at 74-75; Collins v The Queen (1980) 31 ALR 257 at 317; Cleland v The Queen (at 9, 34-35); Regina v Zorad (1990) 19 NSWLR 91 at 99; Regina v Edelsten (1990) 21 NSWLR 542 at 551-554; Foster v The Queen (at 20-21). That all three areas of that general discretion remain applicable notwithstanding the admissibility otherwise of the evidence pursuant to s409 has always been understood to be the case. : See, for example, Regina v Lynch [1979] 2 NSWLR 77S at 780, 784; Gorman v Fitzpatrick (1987) 32 A Crim R330 at 337; Regina v Brotherton (1992) 29 NSWLR 95 at 101. However, something more than the mere fact that the witness is unavailable for cross-examination at the trial would have to be shown in relation to each of those areas of the general discretion, for the prejudice flowing from such an unavailability has necessarily been accepted by the Legislature itself as appropriate in the circumstances to which s409 is applicable: Scott v The Queen [1989] AC 1242 at 1258-1259.

[133]

20 The two provisions deal with different subject matters even though there may be some overlapping, s 409 deals with admissibility of depositions and statements by witnesses at committal who have died by the time of trial, and s 65 deals with exceptions to the hearsay rule, and renders prior representations admissible in criminal proceedings where the maker of the representation is not available to give evidence. But in none of the cases referred to above did the later Act contain an express provision such as s 8 of the Evidence Act which expressly provides that that Act does not affect the operation of the provisions of any other Act. 21 There is no room for implied repeal where there is an express provision such as s 8 to the effect that there shall not be any such implied repeal. The effect of that section is that the Evidence Act is not intended to, and does not affect other mechanisms which are provided in state or federal legislation for the admission of evidence: cf Commissioner of Taxation v Karageorge (1996) 22 ACSR 119. In any event, the Parliament regarded s 409 as still applicable because it was repealed and re-enacted as ss 112 to 116, Criminal Procedure Act 1986 , by the Crimes Legislation Amendment (Sentencing) Act 1999 , see Act No. 94 of 1999 . 22 Alternatively, if the appellant's argument was correct in this regard it might raise questions of whether s 65 was impliedly repealed by ss 112-116 Criminal Procedure Act , an argument which would obviously be untenable because s 65 covers a much wider field than the other provision. But even prior to Act No. 94 of 1999 the Evidence (Consequential and Other Provisions) Act 1995 which was enacted contemporaneously with, and was complementary to, the Evidence Act effected substantial amendments to the Crimes Act including the repeal of ss 408 and 410, but there was no amendment to or repeal of s 409, which was a long standing provision. I am therefore satisfied that s 409 was not impliedly repealed by any section of the Evidence Act , and was in force at the time of the appellant's trial.

[200]

159 The Court of Criminal Appeal in Le, (Sheller JA, with whom Levine and Simpson JJ agreed), considered the tension between the two authorities in circumstances involving the admission of a transcript from a committal, under s116(1) of the Criminal Procedure Act. The error alleged in the relevant grounds of appeal was that the trial judge had not discharged the jury or otherwise withdrawn from the jury the transcript of evidence given during the committal, when it became clear that the relevant witness had left the country (the witness left the country during a break in the proceedings, partway through his evidence) and would not be able to complete his evidence in the trial. In the course of rejecting the relevant grounds of appeal, the Court of Criminal Appeal held (at [93] - [97]) 93 His Honour accepted, I think correctly, that the probative value of the statement was significantly reduced by the non-availability of Phat Nguyen for cross-examination; see Papakosmas v The Queen (1999) 196 CLR 297. At 323, McHugh J referred to the definition in the Dictionary of the Evidence Act of "probative value" as being "the extent to which evidence could rationally affect the assessment of the probability of the existence of a fact in issue". His Honour said: "That assessment, of course, would necessarily involve considerations of reliability ... An assessment of probative value, however, must always depend on the circumstances of the particular case at hand." 94 Such an approach is one more favourable to the appellant than that adopted by Hunt CJ at CL in Carusi v R (1997) 92 A Crim R 52 at 66 . His Honour said that the power of the trial judge to exclude evidence in accordance with the Christie discretion does not permit the judge, in assessing what its probative value is, to determine whether the jury should or should not accept the evidence. 95 In Papakosmas at 325-6 McHugh J referred to Gordon (Bankrupt) Official Trustee in Bankruptcy v Pike (No 1) (Federal Court of Australia, 1 September 1995, unreported) and Commonwealth of Australia v McLean (1996) 41 NSWLR 389 at 401-402 where courts have exercised their discretion to exclude transcript or hearsay evidence because of the resultant inability of a party to cross-examine the maker of the representation on a crucial issue or otherwise effectively challenged the evidence. McHugh J observed: "It is unnecessary to express a concluded opinion on the correctness of these decisions, although I am inclined to think that the learned judges have been too much influenced by the common law attitude to hearsay evidence, have not given sufficient weight to the change that the Act has brought about in making hearsay evidence admissible to prove facts in issue, and have not given sufficient weight to the traditional meaning of 'prejudice' in a context of rejecting evidence for discretionary reasons." 96 The non-availability of Phat Nguyen for cross-examination was at the same time a matter of prejudice to the appellant. The balance was not an easy one to judge. But the mere fact that the evidence was contrary to the appellant's case, while in a sense "prejudicial", does not amount to unfair prejudice. In R v BD (1997) 94 A Crim R 131 at 139 Hunt CJ at CL said: "The prejudice to which each of the sections (ss 135, 136 and 137) refers is not that the evidence merely tends to establish the Crown case; it means prejudice which is unfair because there is a real risk that the evidence will be misused by the jury in some unfair way." 97 I am not persuaded that at any stage McClellan J erred in admitting the statements or in refusing to take them away from the jury. As I have already indicated counsel for the appellant, for reasons related to an argument of self-defence, agreed at various stages to the admission of the statements and to their not being taken away from the jury. The trial Judge directed the jury that it would be dangerous to convict the appellant relying only on the evidence of Phat Nguyen. This was an appropriate direction sufficient for the case. In my opinion, these grounds of appeal standing alone should fail.

[209]

168 Chief Justice Gleeson in Festa v The Queen (2001) 208 CLR 593, in discussing evidence of identification through the use of photographs, discussed the concept of unfair prejudice as follows (at [22]): There are two principal dangers associated with identification by means of selection from a group of photographs. These were discussed in Alexander . There is the inherent risk of error associated with suggestibility, and what is sometimes called the displacement effect. But there is also a risk of a different kind. The fact that the police have photographs of a suspect might convey to the jury the message that the suspect is a person with a criminal history. A similar risk arises where identification is made in circumstances suggestive of a criminal background, such as where a person is asked to attend a police station and look at a number of people reporting in compliance with bail or parole conditions. This is sometimes called the rogues' gallery effect ((1981) 145 CLR 395 at 412 per Stephen J). Because of the evidence as to the circumstances in which the photo-board shown to Mr Hill was prepared, that is not an issue in the present case. The first kind of risk concerns the probative value of the evidence. The second is a risk that the jury will draw an inference about a fact which, even if true, would ordinarily be excluded from evidence. In that connection, some care is needed in the use of the term "prejudice". Where it is present, a risk of the second kind is clearly a risk of unfair prejudice. It is a risk that a fact will be suggested which is of a kind that is ordinarily excluded from evidence in the interests of fairness to an accused . But prejudice does not arise simply from the tendency of admissible evidence to inculpate an accused. It is unfair prejudice that is in question. Where evidence is relevant and of some probative value, prejudice might arise because of a danger that a jury may use the evidence in some manner that goes beyond the probative value it may properly be given. If there is relevant prejudice of that kind, it lies in the risk of improper use of the evidence, not in the inculpatory consequences of its proper use ( Papakosmas v The Queen (1999) 196 CLR 297 at 325-327 [91]-[97] per McHugh J). If it were otherwise, probative value would itself be prejudice . All admissible evidence which supports a prosecution case is prejudicial to an accused in a colloquial sense; but that is not the sense in which the term is used in the context of admissibility. (my emphasis)

[220]

179 Moreover, there are strong policy grounds, reflected in the existence of the relevant provisions of the Criminal Procedure Act, that would weigh significantly against readily acceding to a defendant's submission in relation to unfair prejudice said to arise from procedural disadvantages. The Privy Council clearly and forcefully enunciated these considerations in Scott at 1258-1259: In the light of these authorities their Lordships are satisfied that the discretion of a judge to ensure a fair trial includes a power to exclude the admission of a deposition. It is, however, a power that should be exercised with great restraint. The mere fact that the deponent will not be available for cross-examination is obviously an insufficient ground for excluding the deposition for that is a feature common to the admission of all depositions which must have been contemplated and accepted by the legislature when it gave statutory sanction to their admission in evidence. If the courts are too ready to exclude the deposition of a deceased witness it may well place the lives of witnesses at risk particularly in a case where only one witness has been courageous enough to give evidence against the accused or only one witness has had the opportunity to identify the accused. It will of course be necessary in every case to warn the jury that they have not had the benefit of hearing the evidence of the deponent tested in cross-examination and to take that into consideration. No doubt in many cases it will be appropriate for a judge to develop this warning by pointing out particular features of the evidence in the deposition which conflict with other evidence and which could have been explored in cross-examination; but no rules can usefully be laid down to control the detail to which a judge should descend in the individual case. In an identification case it will in addition be necessary to give the appropriate warning of the danger of identification evidence. The deposition must of course be scrutinised by the judge to ensure that it does not contain inadmissible matters such as hearsay or matter that is prejudicial rather than probative and any such material should be excluded from the deposition before it is read to the jury. Provided these precautions are taken it is only in rare circumstances that it would be right to exercise the discretion to exclude the deposition. Those circumstance will arise when the judge is satisfied that it will be unsafe for the jury to rely upon the evidence in the deposition. It will be unwise to attempt to define or forecast in more particular terms the nature of such circumstances. This much however can be said that neither the inability to cross-examine, nor the fact that the deposition contains the only evidence against the accused, nor the fact that it is identification evidence will of itself be sufficient to justify the exercise of the discretion.

Inspector Stephen Campell v James Gordon Hitchcock

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