Inspector Stephen Campell v James Gordon Hitchcock

HEARING DATES: 07/02/2003 DATE OF JUDGMENT: 12/09/2003

PROSECUTOR: Mr P Skinner of Counsel SOLICITOR: Mr A O'Dea Carroll & O'Dea Solicitors

LEGAL REPRESENTATIVES: DEFENDANT: Mr B Hodgkinson of Senior Counsel Mr A Moses of Counsel SOLICITOR: Mr J J Catanzariti Clayton Utz Lawyers

JUDGMENT: - 108 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

INSPECTOR STEPHEN CAMPBELL v JAMES GORDON HITCHCOCK Prosecution under s16(1) and s50(1) of the Occupational Health and Safety Act 1983

INSPECTOR STEPHEN CAMPBELL v JAMES GORDON HITCHCOCK Prosecution under s15 and s50(1) of the Occupational Health and Safety Act 1983

REASONS FOR INTERLOCUTORY JUDGMENT (NO. 3) [2003] NSWIRComm 436

1 This is the third interlocutory decision relating to the admissibility of evidence in proceedings concerning two prosecutions brought under the Occupational Health and Safety Act 1983 (the Act). Both prosecutions relate to a fatal road accident involving two heavy vehicles on the Pacific Highway near Tyndale (outside of Grafton) on or about 1 September 1999, which caused the death of Darri Denis Haynes, the driver of prime mover registration number TWW240. The charges are brought under ss15, 16 and 50 of the Act.

2 The voir dire was heard on the application of counsel for the prosecutor, Mr Skinner and related to evidence of Leonard Duncan McKellar, a long standing friend of the deceased driver Mr Haynes, given at a coronial inquest surrounding the death of Mr Haynes. The difficulty that has given rise to the voir dire was that the prosecutor tendered that evidence in circumstances where Mr McKellar, another long haul truck driver (I would note that he did not work for the defendant), was tragically killed in a motor vehicle accident on 21 April 2003 when the "stock truck" he was driving collided with a "semi-trailer carrying aluminium boats and crates" whilst travelling on the New England Highway.

3 There were several documents tendered and marked on the voir dire. Whilst it will be necessary to discuss the relevant documents in a little more detail later in this decision, it is convenient at this point to identify those documents which were tendered on the voir dire: Exhibit Q - a letter dated 28 May 2003 from Amanda Templeton, a District Co-Ordinator of WorkCover operating out of its Dubbo office, relating to an motor vehicle accident involving Mr McKellar on 21 April 2003, in which it was suspected that Mr McKellar was killed;

Exhibit R - a Death Certificate issued by the Registrar of the Registry of Births, Deaths and Marriages, dated 17 June 2003, indicating that Leonard Duncan McKellar died on 21 April 2003;

Exhibit S - a record of telephone calls made from a mobile phone, identified under a covering letter as being a phone supplied by Mr McKellar's employer (a business referred to StockTrans) to Mr McKellar, from 6 July 1999 to 7 August 1999 and 7 August 1999 to 6 September 2002.

Exhibit T - a record of telephone calls made from a telephone account identified as being held by a Mrs C A Casey, from 10 July 1999 to 9 August 1999, and 10 August 1999 to 9 September 1999.

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.

Exhibit Z - A further copy of the transcription of the record of proceedings on 11 and 12 June 2002 before the Deputy Coroner, identified as Exhibit 1 to the affidavit of Vivian Lear dated 23 June 2003 (exhibit Y in these proceedings). I note that the terms of the transcript in exhibit Z was the same as that in exhibit's U and V.

4 On 2 July 2003, the Court ruled on the admissibility of those exhibits in the trial. However, in order to elucidate that ruling it is necessary to briefly (and in a preliminary way only) set out the contentions of the prosecutor and the defendant.

5 The prosecutor initially tendered that part of the transcript of proceedings before the Deputy Coroner on 12 June 1993 which recorded evidence given by Mr McKellar (page 17 to page 25 line 7 - the "McKellar transcript") and the statement given by Mr McKellar on 3 September 1999 (the "McKellar statement"), found in exhibits V and X, in the substantive proceedings. The prosecutor's tender was later amended, following the admission (without objection) of exhibits Y and Z on the voir dire, to be that part of the transcript of proceedings before the Deputy Coroner on 12 June 1993 which recorded evidence given by Mr McKellar, including the amendments as provided in exhibit Y (including the transcript of the statement read before the Deputy Coroner in Annexure B to exhibit Y). It is the admissibility of this document that forms the issue on the voir dire. 6 On Mr Skinner's submission, subject to satisfying the other requirements for admissibility as otherwise provided in under the Evidence Act 1995, the evidence given by Mr McKellar in the coronial proceedings as reflected in the transcript (that is, the McKellar transcript in exhibit Z and the transcript of the statement as read in exhibit Y), constituted a "deposition" within the meaning of s112 of the Criminal Procedure Act 1986, and, therefore, "may be admitted as evidence for the prosecution at the trial of an accused person". That is, on Mr Skinner's submission, the provisions of s112 were a facilitative provision relating to the form in which evidence may be admitted - its admissibility being otherwise determined by the provisions of Chapter 3 of the Evidence Act.

7 As an alternative to the operation of s112 of the Criminal Procedure Act, Mr Skinner contended that portions of the deposition were admissible as an exception to the hearsay rule, as found in s 72 of the Evidence Act. Whilst he accepted that this evidence would be second-hand hearsay, on his submission, s 72 was not confined to first hand hearsay and was applicable to certain aspects of the evidence given by Mr McKellar.

8 Mr B Hodgkinson, senior counsel and Mr A Moses of counsel who appeared for the defendant, conceded that the McKellar transcript did constitute a deposition for the purposes of s112 of the Criminal Procedure Act. However, it was contended that the McKellar statement did not form part of the "deposition" under s112 and as such, s112 was not applicable to the question of the admissibility of that document. The part of the transcript that identified the McKellar statement as being read onto the record, did not alter the fact that the terms of that document did not form part of the "deposition" and remained a statement found in exhibit X. The relevant provision in relation to exhibit X was s116 of the Criminal Procedure Act. Further, senior counsel contended that s112 did not apply to the McKellar transcript because the defendant did not have a full opportunity to cross-examine Mr McKellar (see s112(1)(c)).

9 Further, on senior counsel's submission there was no contemporaneous representation as referred to in s 72 of the Evidence Act.

10 In any event, on either of the bases relied upon by the prosecutor to admit the evidence of Mr McKellar, it was submitted that the evidence should be excluded in the exercise of discretion under s135 or 137 of the Evidence Act.

11 As earlier noted, the Court gave its ruling on the admissibility of the evidence of Mr McKellar on 2 July 2003. That ruling was as follows: I admit into evidence in the trial the deposition of the deceased person Leonard Duncan MacKeller, being the transcript of proceedings of 12 June 2002 in Exhibit 1 of Exhibit Z on the voir dire from line 1 on page 17 commencing with the name of the deceased to line 6 on page (ending with the words "diary yeah") including Annexure B of Exhibit Y from the words "I have known" to "stay awake", except for the following parts of that deposition which are struck.

That part of the deposition found in Annexure B of Exhibit Y, I strike from the words "I rang him at about 830 am" appearing on line 19 to the words "he told me he was going to load Coca Cola to Sydney" and further the words commencing at line 40 "Darri has been working" to line 46 the words "couldn't please the man".

And then in Exhibit Z of the transcript of 12 June 2002 on page 19 at line 14 - although I interpose here to note that the line references in this transcript are not always entirely accurate, therefore, from the words "but Darri was a person" to the word appearing on line 32 "know".

Then on page 20 from the second line, from the words "well, it's the hours" to the words on line 18 "that was". Then on the same page, that is page 20, the question and answer which commences at approximately line 33 with the words "and what does it do" to the words "I don't know". On the same page, page 20, from what appears to be line 42 in the answer from the words "but over a period" being struck down to the words on line 55 "how far do you go?_

On page 21, that part of the answer to the question appearing at approximately line 6, the question reading "and what did he say about that", I note that the question is not being struck, but excluding that part of the answer from the words "well, he couldn't", commencing at the answer, to the words appearing at line 11 "people like him"; and further in that same answer on page 21 the words appearing at line 16 as follows "like Jim got him or".

On page 22 the two questions and answers which commence at approximately line 26 with the words "and I think the effect", the answer then following at approximately line 31 and the further question commencing with the words "something to that effect" and the answer "something yeah" at line 35. …

Page 23 commencing at line, that is of Exhibit Z, commencing at line 20 with the words "I just want" and ending, that is in terms of the excision, at line 41 with the answer "yeah" appearing on that page 12 The Court indicated that it would give its reasons for that judgment in due course. These are the reasons for the Court's decision.

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.

14 Whilst I have not been specifically taken to these provisions by the prosecutor or the defendant, it is also useful to have regard to ss114 and 115 of that statute: 114. Evidentiary effect of certain transcripts (1) If a deposition referred to in section 112 or 113 is in the form of a written transcript of matter recorded by means, other than writing, authorised by law for the recording of depositions: (a) the record so made is taken to be a true record of the matter so deposed, and (b) the transcript of the record is taken to be a correct transcript of that record, unless proved to the contrary. (2) Subsection (1) applies only to: (a) a transcript made in the form of shorthand notes, being a transcript identified by, and signed in the handwriting of, the person purporting to have made those notes, or (b) a transcript made by other means (other than writing) authorised by law for the recording of depositions, being a transcript certified in the manner prescribed by the regulations made under the Justices Act 1902 . 115. Depositions taken during pre-trial investigations A deposition taken on the preliminary or other investigation of an indictable offence: (a) 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 taken, and (b) may be proved in the same manner as if the accused person were on trial for that offence.

15 I note that the term "deposition" is not defined in the Criminal Procedure Act. Before leaving the Criminal Procedure Act, for completeness, I should note that the term "court" is defined to include: "court" means: (a) the Supreme Court, the Court of Criminal Appeal, the Land and Environment Court, the Industrial Relations Commission, the District Court or a Local Court, or

(b) any other court that, or person who, exercises criminal jurisdiction, but, subject to the Children (Criminal Proceedings) Act 1987 , does not include the Children's Court or any other court that, or person who, exercises the functions of the Children's Court.

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.

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.

18 Sections 135 and 137 are also of considerable importance: 135. General discretion to exclude evidence The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might: (a) be unfairly prejudicial to a party, or (b) be misleading or confusing, or (c) cause or result in undue waste of time. … 137. Exclusion of prejudicial evidence in criminal proceedings In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.

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)

20 It is also useful to note the terms of s 34A of that statute: 34A. Documentary evidence Divisions 4 and 5 of Part 4 of the Criminal Procedure Act 1986 apply to and in respect of an inquest or inquiry in the same way as they apply to and in respect of proceedings before a court, and any function exercisable by a justice under those Divisions may, for the purposes of an inquest or inquiry, be exercised by a coroner.

21 The term "deposition" is defined in s 4(1) of the Coroners Act as follows: "deposition" means, where a deposition is recorded by a means other than writing, a transcript certified in the manner prescribed by regulations made under the Justices Act 1902 of the deposition so recorded.

22 The relevant regulations made under the Justices Act would appear to be the Justices (General) Regulation 2000 which provides in clause 19: 19. Certification of certain transcripts The person by whom a transcript is prepared of depositions recorded by one of the means (other than writing) referred to in section 36 (4) or 70 (4) of the Act must certify that the transcript so prepared is a correct transcript of the depositions so recorded.

23 Section 36 of the Justices Act is found in Subdivision 7 (entitled "Committal Proceedings") of Division 1 (entitled "Indictable Offences") of Part 4 (entitled "Procedures before Justices") and is in the following terms: 36. How evidence to be taken (1) Every witness shall have the usual oath administered to him or her before he or she is examined. (2) The prosecutor may himself or herself, or by his or her counsel or attorney, conduct his or her case, and may examine and cross-examine the witnesses giving evidence for or against him or her. (3) The defendant may himself or herself, or by his or her counsel or attorney, make full answer and defence, and may give evidence himself or herself, and may examine and cross-examine the witnesses giving evidence for or against him or her respectively. (4) The deposition of every witness shall be recorded by means of writing, shorthand, stenotype machine, sound-recording apparatus or such other means as may be prescribed. (5) Where, for the purposes of subsection (4), the deposition of a witness is recorded by means of writing, it shall be read over either to or by the witness, as the Justice or Justices may direct, and be signed by him or her and by the Justice or Justices.

24 Section 70 of the Justices Act is found in Division 2 (entitled "Offences Punishable on Summary Conviction and Complaints") of Part 4 (entitled "Procedures before Justices") and is in the following terms: 70. How evidence to be taken (1) Every witness shall have the usual oath administered to him or her before he or she is examined. (2) The prosecutor or complainant may himself or herself or by his or her counsel or attorney, conduct his or her case, and may examine and cross-examine the witnesses giving evidence for or against him or her, and may, if the defendant gives any evidence or examines any witness as to any matter other than as to his or her general character, call and examine witnesses in reply. (3) The defendant may himself or herself, or by his or her counsel or attorney, make full answer and defence, and may give evidence himself or herself, and may examine and cross-examine the witnesses giving evidence for or against him or her respectively. (4) The deposition of every witness shall be recorded by means of writing, shorthand, stenotype machine, sound-recording apparatus or such other means as may be prescribed. (5) Where, for the purposes of subsection (4), the deposition of a witness is recorded by means of writing, it shall be read over either to or by the witness, as the Justice or Justices may direct, and be signed by the witness and by the Justice or Justices.

25 Having regard to s116(1) of the Criminal Procedure Act I should also set out s 48A of the Justices Act: 48A. Evidence in the form of written statements in committal proceedings (1) Notwithstanding any other provision of this Act, but subject to this Subdivision, a written statement by any person is, if tendered by the informant, admissible in committal proceedings as evidence to the same extent as if it were oral evidence to the like effect given in those proceedings by that person. (2) Any document or other thing identified in any written statement admitted as evidence under this section shall, if the document or other thing is produced as an exhibit in the committal proceedings, be treated as if it had been identified before the Justice or Justices by the person who made the statement. (3) A written statement that is inadmissible as evidence under this section by virtue of any provision of this Subdivision may nevertheless be admitted as evidence in accordance with any rule or law of evidence, as if this Subdivision were not in force.

26 The following definitions contained in s 3 of the Justices Act are also relevant: "Committal proceedings" means a hearing before a Justice or Justices for the purpose of deciding whether a person charged with an offence should be committed for trial or for sentence, and includes any proceedings that are preliminary thereto or ancillary thereto. … "Justice" means a Justice of the Peace

27 A "justice of the peace" is not defined under that statute. That term is, however, defined under the Justice's of the Peace Act 2002 in s 3 to mean a "a person who holds office as a justice of the peace under this Act"

28 The coronial proceedings surrounding the death of Darri Dennis Haynes, commenced before Deputy State Coroner Milovanovich in Grafton on 11 June 2002, the record of which is to be found in exhibits U and Z (noting that exhibit Z was amended in certain respects as contained in exhibit Y). The transcript identified that, at that time, Sergeant R Lund of the New South Wales Police Service was appearing to assist the Coroner, Mr W G Roser was appearing for the WorkCover Authority of New South Wales and Mr A Moses of counsel (counsel for the defendant in these proceedings) was appearing for James Gordon Hitchcock (the defendant in these proceedings). It is useful to note that Mr Moses made the following statement to the Coroner upon entering his appearance: My name is Moses, initial A. I appear for Mr Hitchcock who is a person who has been charged pursuant to the provisions of the Occupational Health and Safety Act in respect of the accident involving the deceased who is the subject of the Coronial inquest, Mr Haynes.

29 Having settled some preliminary procedural matters, including a discussion between the Coroner and Mr Moses as to the absence of Mr Hitchcock from the proceedings on that day, Mr Lund called Senior Constable Turner. Senior Constable Turner was not the officer-in-charge of the investigation into the accident on the morning of 1 September 1999, although he had attended the accident site with the officer-in-charge (Senior Constable Clarke) on that morning. Senior Constable Clarke was bedridden and unable to attend the proceedings.

30 After Senior Constable Turner had been sworn, Mr Lund proceeded to tender (without objection) various documents associated with the confirmation and certification of Mr Hayes death. The transcript then disclosed the following exchange between Mr Lund and the witness: Q. I show you a document termed "Brief of Evidence Touching the Death of Darri Dennis Haynes, heavy vehicle collision on Wednesday 1 September 1999, Pacific Highway, Tyndale, approximately 1 kilometre south of the township of Tyndale". Its marked "The OIC Senior Constable Defendant Clarke north Region Crash Investigation Unit, Ballina, assisting Senior Constable L Roberts, Yamba Police Station", I show you that document. Do you recognise that particular document to contain a series of statements and other reference to this particular incident?

A. Yes that's the brief of evidence prepared by Senior Constable Clarke.

31 Having read a statement of Senior Constable Clarke to the Court, the brief of evidence was marked "exhibit 2". I note that the transcript (exhibits U and Z) does not actually set out, that is set out in terms, the document that was read by the witness. It merely contains a notation "WITNESS READ STATEMENT TO COURT" - although I should note that transcript does set out small portions of the statement as read. The transcript discloses that the brief of evidence was received without objection. Exhibit 3, identified on the transcript as "photographs and sketch plan" associated with the incident was admitted, again without objection, as was exhibit 4 identified in the transcript as "WorkCover report for the coroner tendered". Various questions, none of which are of present relevance, were asked of the witness before he was retired. These questions included a brief cross-examination by Mr Moses. The transcript discloses that the proceedings were then adjourned to the following day so as to permit an inspection of the incident site.

32 The proceedings commenced the following day with the evidence of Neville Keith Walker. Again, the evidence of Mr Walker is not of relevance for the purposes of this judgment, other than to note that Mr Walker was extensively cross-examined by Mr Moses. I should also note that the transcript discloses that it was Mr Lund, rather than the witness who read the two statements of Mr Walker to the Coroner - the witness confirming under oath that there were no amendments or omissions that he would make and that the statements as read were true and correct.

33 The next witness was Leonard Duncan McKellar. Having taken Mr McKellar's formal details, the transcript then discloses the following exchange took place between Mr Lund and Mr McKellar (page 17 of exhibit V and corresponding page in exhibit Z): Q. And in fact on 3 September did you make a statement to the police at Grafton? A. I did.

Q. In relation to this matter that brings you to court here today? A. I did.

Q. Do you have a copy of that statement with you? A. No it's in the car.

Q. I just show you a two page statement Mr McKellar, do you recognise that to be a statement that has your signatures at the base of the pages? A. I do yeah.

Q. And it's dated 3 September? A. Yep

Q. Has your name on it there at [address], occupation truck driver? A. Yes.

Q. Okay I'll read that to you but I'll step back down over there, if you can just listen? A. Okay.

Q. Now that completes reading that statement Mr McKellar, is that statement true and correct? A. Correct, yeah.

Q. Is there anything you wish to add to the statement? A. No not really no.

Q. Anything you wish to take away from that statement? A. Nope.

34 Mr Lund then proceeded to ask questions of the witness. Mr Moses then cross-examined Mr McKellar, extending for some four pages of exhibit V. For completeness, I also note that Mr Roser asked three questions of the witness.

35 Following the conclusion of Mr McKellar's evidence, two further witnesses gave evidence, including the defendant in these proceedings. This is worthy of note as it would tend to indicate that the defendant was present during the proceedings before the Deputy State Coroner on 12 June 2002. 36 Ms Lear gave evidence under oath as to the content of that which was read to the Deputy Coroner, corresponding to the entry "LUND READ STATEMENT TO COURT" on page 17 of the transcript of proceedings on 12 June 2002. She gave evidence under oath that the actual transcript of the proceedings corresponded to that entry in the transcript of the proceedings was as follows (in Annexure B of Exhibit Y):: EXTRACT - LUND READ STATEMENT TO COURT (p17)

LUND: I have known Darri Haynes for the past thirty years. We have best - we have been best mates and we have worked together for StockTrans for two years. I normally ring him twice a day every day. I rang him about 8.30am on Wednesday morning, 1 September 1999. I just called to see what he was up to and where he was loading. He had been home on the weekend. He left Sunday night to go to Brisbane to unload. Then he went employ from Brisbane to Kempsey. He loaded bricks on Monday afternoon. Then he went to Nowra and unloaded at 8.30am in the depot. Then he had to wash the truck, which takes five to six hours. Then he went to the paper mill to load back to Brisbane. He was in Brisbane at that time unloading. He told me he was going to load at Coca Cola for Sydney. He didn't leave Coca Cola until about 4pm. I rang him at 6.30pm that afternoon and he was - and he was fuelling up at Beenleigh. We talked for about twenty minutes. He said he had no sleep at all that day and the night before. I rang him about 11pm and he was at Ballina having a cup of coffee. We talked a couple of minutes and he said he was coming home to Grafton and then he had to be in Sydney in the morning. At 3am on Thursday morning, 2 September 1999, I was contacted by Vicki Campbell, Darri's defacto, and she told me that he had been killed in the accident. Darri has been working for his current employer, Jim Hitchcock, for two months. During that time Darri has told me that Jim Hitchcock has been on his back all the time. By that I mean he always felt pressured into keeping strict schedules with little time for rest in between loads. No matter how he tried and what he did he couldn't please the man. I know that Darri took amphetamines to stay awake.

37 Mr Skinner relied on s112 of the Criminal Procedure Act, for the submission that the relevant "deposition" of Mr MacKellar was admissible in these proceedings - the "deposition" on Mr Skinner's submission being the entirety of the evidence given by Mr MacKellar before the Coroner as transcribed in exhibit Z, being the transcript of the record of proceedings on 12 June 2002, at page 17 line 1 to page 25 line 8, as amended by exhibit Y. This included, on his submission, the relevant terms of exhibit X as having been read onto the record and as provided on the oath of Ms Lear as the transcript at annexure "B" to exhibit Y. On his submission, the defendant was represented by counsel (having regard to the announcement of appearances on 11 June 2002 and the continuation of appearances the following day, as identified in exhibit Z and annexure "A" to exhibit Y), and that at the time of the coronial inquest, the defendant had been charged with an offence under the Occupational Health and Safety Act (that is, the defendant was an "accused" as identified by s112).

38 Mr Skinner contended that exhibit X, having been read onto the record (even though the reporter had only referred to the statement having been read on the actual transcript record), formed part of the deposition on that day. The relevant "deposition" was the evidence of the witness found in the record of the proceedings as transcribed (noting that the transcript was properly certified) and proved on oath: see s 4 of the Coroner's Act and the distinction between the "record" of proceedings and the relevant "transcript" as provided in R v Attard; R v Mifsud [1970] 1 NSWR 750. Moreover, it was submitted that the deposition included both questions and answers as transcribed. Whilst no issue was taken by the defendant in this regard, the prosecutor drew attention to clause 19 of the Justices (General) Regulation, submitting that exhibit Z contained the certification required by that provision.

39 Turning then to the operation of s112, Mr Skinner contended that the various matters identified in s112(1) had to be proved on the balance of probabilities: see s142 of the Evidence Act. In that regard, having regard to exhibits Q and R and the evidence of the inspector given on the voir dire, together with the evidence given on oath by Ms Lear in exhibit Y, it was apparent that the matters identified in s112(1)(a) and (b) had been satisfied. Turning to s112(1)(c), it was submitted that Mr Moses of counsel, who represented the defendant during the coronial proceedings, had full opportunity to cross-examine the witness Mr MacKellar and in fact did so, as was apparent from exhibit Z. As such, the "deeming provision" in s112(4) was enlivened and the material was admissible under s112(1). In any event, there was nothing, on Mr Skinner's submission, that would warrant the conclusion that there had not been a full opportunity to cross-examine as provided for in s112 of the Criminal Procedure Act.

40 As for the interaction of the Evidence Act and the Criminal Procedure Act, it was submitted on behalf of the prosecutor, that the two legislative schemes were to co-exist. Whilst the Criminal Procedure Act would have the effect of overcoming the hearsay provisions of the Evidence Act, in order to be admissible, evidence tendered in reliance upon the beneficial provisions of the Criminal Procedure Act had to otherwise had to comply with the Evidence Act - in particular, those relating to relevance: see ss55 and 56. Mr Skinner conceded that the exclusionary provisions in Pt 3.11 operated "with full force and effect" in considering evidence tendered in reliance upon the relevant provisions of the Criminal Procedure Act.

41 In the alternative, the prosecutor contended that s 72 of the Evidence Act was available in relation to some, but not all, of the material in exhibits Y and Z. In this regard, Mr Skinner contended that s 72 which provided an exception to the hearsay rule in s 59 of the Evidence Act was not restricted to first hand hearsay and, as such, rendered the relevant evidence admissible, subject to the Court's discretion.

42 In relation to the exercise of discretion to exclude the McKellar evidence, Mr Skinner took the Court to a series of authorities dealing with s 409 of the Crimes Act 1900, the predecessor provision to ss112 and 116 of the Criminal Procedure Act (see R v Stackelroth (1996) 86 A Crim R 438 and R v Gover (2000) 118 A Crim R 8), for the proposition that, whilst there was a "residual discretion" in s116 (as reflected in s 409(7) and onwards and discussed in Stackelroth and other relevant authorities), there was no "residual discretion" in relation to s112 (previously s 409(1) see as discussed in Reg v Lynch [1979] 2 NSWLR 775, R v Brotherton (1992) 29 NSWLR 95 and Stackelroth).

43 On counsel's submission, where the matters identified in s112 have been satisfied, there was no residual discretion, save for that referred to in the authorities as a "general discretion" available at common law, which, on his submission, was now to be identified as that available under the provisions of Part 3.11 of the Evidence Act. That there was no "residual discretion" under s112 was said to be of significance, as discussed by Hunt CJ at CL in Stackelroth, in order to identify "the parameters" of the discretion which was relevant to the instant case. In particular, Mr Skinner pointed to the judgment in Stackelroth in which Hunt CJ at CL, having identified that there continued to be a "general discretion" to exclude evidence where, inter alia, "the prejudicial effect of the evidence outweighs its probative value", and having identified that "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" because, "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" (at 439-440), stated (at 440): I agree with Allen J that, for the purposes of the exercise of this particular discretion, the unavailability of the witness for cross-examination at the trial may be relevant to a consideration of the probative value of the evidence, although I repeat that that fact alone is insufficient.

44 On the prosecutor's submission, the distinction sought to be drawn in Stackelroth between the "general discretion" and the "residual discretion" was, to use the words of Hunt CJ at CL, a "sensible one", and one that was supportive of the proposition that the Legislature has considered where someone gives evidence and gets cross-examined, as in this case, there is no need to give the trial judge a wider discretion to ensure fairness than that which has always been available at common law to exclude evidence where its probative value would be out weighed by its prejudicial effect. That general discretion was, on Mr Skinner's submission now to be found in s135 of the Evidence Act, or perhaps in the mandatory provision s137.

45 On Mr Skinner's submission, evidence tendered under s116, being evidence in the form of a statement, may not have been the subject of cross-examination in committal proceedings, as discussed by Smart J in R v Grant (2001) 127 A Crim R 124. As such, it was consistent with the statutory scheme and the requirement under s112 that a "full opportunity" to cross-examine is given, that the Court under s116 would have a greater degree of flexibility to exclude evidence. This was reflected, it was submitted, in the opening words of that provision, namely, "unless the Court otherwise orders …".

46 Attention was drawn to the judgments of the Court of Criminal Appeal in Gover and Grant (noting that both were decisions dealing with s116 rather than s112), to highlight that, even where there had been an entire absence of opportunity to cross-examine on a witness statement tendered before a committal, whose statement was subsequently tendered in a trial in reliance upon s116, there may not be sufficient prejudice to enliven the "residual discretion" such as to warrant its exclusion from proceedings - let alone such as to warrant its exclusion as being overly prejudicial.

47 The discretion available under s116 was a "broader" discretion and one not available to the Court in these proceedings. By analogy, Mr Skinner contended that there was nothing in the evidence tendered in these proceedings that would warrant its exclusion either under s137 on the basis of unfair prejudice or under s135 in the exercise of discretion. The circumstances surrounding these proceedings were not of the "exceptional and rare" kind, it was submitted, that would enliven the power in Pt 3.11 of the Evidence Act.

48 In particular, Mr Skinner contended that there was no relevant prejudice that would be suffered by the defendant in these proceedings. It was not merely "prejudice" at large that was relevant, but "unfair prejudice". Relevant prejudice was not found merely by the fact that the relevant evidence would prove the prosecution case. The prejudice that was relevant when approaching the balancing exercise required by Pt 3.11 of the Evidence Act was the risk "that the evidence would in some way be misused": see for example the reasoning of Sully J in Reg v Burrell [2001] NSWSC 120.

49 Whist such a consideration was submitted to be of particular importance in jury trials, it was to strain the concept of prejudice to suggest that a trial judge sitting alone may "misuse" evidence. Whilst on counsel's submission there was no authority directly on point, it was instructive to have regard to the approach adopted in Gencay [2002] ACTSC 114 at [24]. The risk that evidence may be misused, such as to constitute relevant prejudice, must be less when a judge is sitting as the trier of fact. The prosecutor also submitted that the defendant had not "crystallised" or "elucidated" exactly what would be the unfair prejudice to which the defendant would be exposed. The evidence was relevant and should be admitted.

50 In reply to the defendant's submission seeking to have the Court undertake an assessment of the reliability of evidence as a part of assessing its probative value for the purpose of s135 and 137, Mr Skinner submitted that the defendant's reliance on the obiter dicta comments of McHugh J in Papakosmas v The Queen (1999) 196 CLR 297 were misplaced. On counsel's submission, the more regular approach was that to be found in the judgments of Hunt CJ at CL in R v Carusi (1997) 92 A Crim R 52 and R v Singh-Bal (1997) 92 A Crim R 397. In that regard, Mr Skinner submitted that the Court could only exclude evidence under the relevant statutory provision when "taken at its highest, its probative value is outweighed by its prejudicial effect". The "key" to the proper approach, on Mr Skinner's submission, was the requirement that the evidence be "taken at its highest".

51 On the prosecutor's submission, the issue of reliability was not to be assessed on a voir dire as a part of the exercise of the powers in Pt 3.11 of the Evidence Act. On the voir dire the court should take the evidence at its highest and only exclude the evidence if, when seen in that light, it was unfairly prejudicial or otherwise met the tests in s135. Reliability was an issue for the trier of fact in light of all the evidence in the proceedings and in light of the submissions of the parties at the close of the evidence - it should not be assessed at this stage of the proceedings. It was only in the case of identification evidence (being evidence of a kind long recognised as carrying with it particular difficulties) that the question of "unreliability" impacted upon the consideration of evidence under Part 3.11 of the Evidence Act: see R v Tugaga (1994) 74 A Crim R 190.

52 In the alternative, and directing attention to the reliability of Mr McKellar's evidence, Mr Skinner submitted that the defendant's submission that its probative value was reduced by the fact that it was hearsay, was incorrect: see Papakosmas at [91] - [93]. The defendant's submission, it was contended "seeks to have it both ways" - that is, the probative value of the evidence is reduced because it is hearsay and that its prejudicial value is increased for exactly that reason. When undertaking the balancing exercise required by the relevant exclusionary provisions, the relevant factor "comes on one side of the balance or the other". In McHugh J's judgment in Papakosmas at [93], having referred to a series of decisions dealing with hearsay evidence under the Evidence Act, his Honour stated: 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.

53 It was submitted that this passage was referred to by the Court of Criminal Appeal in R v Le (2002) 54 NSWLR 474 at [95], before the Court observed that, whilst "the non-availability of [the witness] for cross-examination was …a matter of prejudice to the appellant", "…the mere fact that the evidence was contrary to the appellant's case, while in a sense "prejudicial", does not amount to unfair prejudice" (the Court also referred to the judgment of Hunt CJ at CL in R v BD (1997) 94 A Crim R 131 at 139).

54 On the prosecutor's submission, it was inappropriate to assess the reliability of Mr McKellar's evidence from some "prima facie position" - that is, as though it were "inherently unreliable just because it is hearsay evidence". On counsel's submission, the Evidence Act amended the traditional common law rules as to hearsay, subject to certain procedures being complied with. It is admissible evidence in criminal proceedings, so long as certain procedural requirements are met. The assessment of the reliability of such evidence was a matter for the trier of fact in light of all the evidence.

55 The line-by-line and question-by-question deconstruction of the deposition urged by the defendant is of no assistance, on the prosecutor's submission, as those matters do not go to the assessment of probative value as properly understood. On the approach adopted in Curasi, the evidence must be taken at its highest - questions of reliability being a matter for the trier of fact. Relevant prejudice, on Mr Skinner's submission, arises where there is a risk that evidence may be misused. The evidence tendered was circumstantial evidence relied upon to demonstrate the state of mind and tiredness of the deceased Mr Haynes. The material contained within Mr McKellar's evidence was, on the prosecutor's submission, a "link on the way towards establishing beyond reasonable doubt" the elements of the offence.

56 On the prosecutor's submission, the fact that there has not been an opportunity to present Mr McKellar to this Court disadvantaged both the prosecutor and the defendant. Whilst it was conceded that the rules of evidence did not strictly apply before the Coroner (having regard to s 33 of the Coroner's Act), the prosecutor submitted that the defendant was "not wholly correct" in its submission that proceedings before the Coroner were of a different nature to those involving a committal in the sense that committal hearings were strictly bound by the rules of evidence. In particular, the prosecutor drew attention to the fact that evidence cannot be excluded from a committal proceeding on the basis of discretionary grounds: see ss41(8A) and 48F. Whilst it was conceded that a lack of cross-examination in these proceedings may affect the probative value of the evidence of Mr McKellar, the significance of cross-examination ought not be overstated.

57 Mr Skinner emphasised that by the time Mr McKellar gave evidence in the coronial proceedings, the defendant had been served with the charges under the Act and had been served with a copy of the brief of evidence (including exhibit 30). The defendant was represented by counsel before the Coroner, and could have availed himself of any of the investigative tools at his disposal in the coronial proceedings. Finally, and perhaps most significantly, it was emphasised that the defendant had the McKellar statement at the proceedings before the Coroner - he could have and, in fact, did cross-examine the witness whilst in the coronial proceedings, on that very statement. There was no restriction, of any kind, placed by the Coroner on the scope of questioning or on the duration of the cross-examination.

58 As to the alleged inconsistencies to be found by comparison with the phone records contained in exhibits S an T, it was submitted that those records did not challenge the veracity of Mr McKellar's evidence in the way sought by the defendant. On Mr Skinner's submission, all the comparative exercise undertaken by the defendant demonstrated was that Mr McKellar may have been incorrect in the times specified or that a telephone, other than that to which the records in evidence related, was used to have the conversations - although it was conceded that no other telephone records had been uncovered by the prosecutor. On his submission, it could not be said that the absence of any identical corresponding record could establish that the conversations did not take place at all. In any event, the appropriate time for challenging the reliability of evidence by way of alleged inconsistency was at the conclusion of the trial.

59 Mr Hodgkinson SC commenced his submissions with the proposition that the Evidence Act applied to the admission of all the evidence in the trial including that tendered in reliance upon the Criminal Procedure Act. The fact the prosecutor sought to enliven the facilitative provisions of the Criminal Procedure Act did not detract from that fundamental proposition. In relation to that latter Act and the prosecutor's reliance upon s112, senior counsel for the defendant took issue with the prosecutor's submissions in two regards.

60 Firstly, on Mr Hodgkinson's submission, whilst it was conceded that the transcript of proceedings of 12 June 2002 before the Coroner, as found in exhibits Y and Z, otherwise constituted a "deposition", the statement in exhibit X did not form part of the deposition. Hence, that aspect of the transcript which noted the reading of exhibit X did not result in exhibit X forming part of the relevant deposition. On senior counsel's submission, exhibit X was at all times a "statement" and, even though it may have been read onto the record during the coronial proceedings, always remained a "statement" as opposed to a "deposition". Mr Hodgkinson conceded, however, that the document read during the McKellar transcript (that is, the reference to "Lund Read Statement to Court" appearing on page 17 of exhibit Z (and as transcribed in annexure "B" to exhibit Y), was a reference to the reading of the McKellar statement (exhibit X). It was unnecessary to formally prove that document by the tender of the tape recording of proceedings before the Coroner (which it was acknowledged was held by the prosecutor). Mr Hodgkinson also noted that he did not otherwise raise any technical objection surrounding the recording or production of the exhibits Y or Z.

61 That exhibit X was to be treated as a "statement" and not forming part of a "deposition" was, on Mr Hodgkinson's submission, reinforced by the procedure adopted during the inquest. On 11 June 2002, the officer assisting the Coroner tendered the "brief of evidence" containing a number of statements, including the statement of Mr MacKellar. That brief of evidence received a formal marking and at that time became evidence tendered in the inquest. Whilst the statement may have been read and adopted by the witness later in the proceedings, the statement was in and of itself, a part of the brief of evidence and was evidence in the form of a statement. Whilst it was conceded, having regard to s 34 of the Coroner's Act and the definition of "deposition" as provided in s 4 of that statute, that the evidence of Mr McKellar otherwise given on that day was a "deposition", that did not render exhibit X part of that deposition.

62 This contention was further reinforced, on Mr Hodgkinson's submission, by the decision of the Court of Criminal Appeal in Attard and the emphasis placed in the judgment upon the fact that the relevant "deposition" was constituted by the "record" of the proceedings, that is the recording of what was said by the witness during the proceedings. On his submission it was not the reading of the statement that formed part of the deposition, rather it was merely the answer given by Mr McKellar to the question which immediately followed the reading of the statement that formed part of the deposition - that is, where Mr McKellar stated: Q. Now that completes reading that statement Mr McKellar, is that statement true and correct? A. Correct, yeah.

63 As for the second aspect of the challenge to the operation of s112 in the circumstances of this case, senior counsel contended that the requirement in s112(1)(c) that there be a "full opportunity to cross-examine the witness" had not been established. On the defendant's submission, Mr Moses, during the coronial proceedings, simply did not have a "full opportunity to cross-examine the witness" as required by s112(1)(c). This submission was based upon the availability of the evidence of the telephone records in exhibits S and T. That evidence was not served on the defendant until after the conclusion of the coronial inquest. It was submitted that that evidence demonstrated inconsistencies in the evidence of Mr McKellar, and that the inability of the defendant to cross-examine upon the basis of those records meant that there had not been a full opportunity to cross-examine.

64 It was submitted then the beneficial provisions of section 112 of the Criminal Procedure Act were simply not available to the prosecutor. In the alternative, it was contended that the lack of opportunity to cross-examine Mr McKellar in these proceedings was relevant to the operation of s135 and in particular s137 of the Evidence Act.

65 As for the alternative proposition put by the prosecutor, that is the prosecutor's reliance upon s 72 of the Evidence Act, the defendant contended that the evidence of Mr MacKellar was not a contemporaneous representation as required by that section. Further, it was submitted that were the Court satisfied that but for s 72, the evidence of Mr MacKellar would be prohibited (that is, as hearsay under s 59 of the Evidence Act that did not fall within one of the exceptions to the hearsay rule), then that would be a substantial factor to be weighed in the balance when considering the probative value of the evidence under ss135 and 137.

66 Whilst Mr Hodgkinson did initially take objection to the McKellar evidence on the basis of relevance, and in particular the failure of counsel for the prosecutor to specifically direct the Court to how the McKellar evidence was relevant to the issues in these proceedings, I apprehend that much of the difficulty that had been initially the subject of submission was dealt with in the prosecutor's reply submissions. I merely note that the objection as to relevance was, quite properly in the circumstances, not heavily pressed (except as to the prosecutor's failure to properly articulate the grounds of relevance).

67 Turning then to the exclusionary provisions of the Evidence Act, Mr Hodgkinson submitted, if the prosecutor was successful in its submissions as to the operation of s112 of the Criminal Procedure Act, he would not be taking issue based upon the operation of the hearsay provisions of the Evidence Act per se. He did, however, make submissions directed towards the lessening of probative value associated with hearsay evidence. Moreover, on senior counsels submission, if the Court came to the view that the evidence tendered would, but for s112 of the Criminal Procedure Act, not have been admissible in the proceedings, then that fact should have a significant effect when assessing the probative value of the evidence. The decreased probative value of the evidence in light of these factors was, on the defendant's submission of significance when approaching the balancing exercise required by the provisions of Pt 3.11 of the Evidence Act.

68 It was submitted that whilst it was important to recognise that s112 (and its predecessor provision s 409(1)) did not provide the "residual discretion" as was referred to in the authorities dealing with s116 (and its predecessor provision s 409(7)), the Court's have always recognised the existence of an overriding "general discretion" to exclude otherwise admissible evidence, where the Court formed the view that its admission would be more prejudicial to the defendant than its probative value would warrant, or where it would otherwise cause unfair prejudice to the defendant: see Lynch, Scott v The Queen [1989] 1 AC 1242, Brotherton and Stackelroth. Whilst there had not been a decision which squarely determined that s112 of the Criminal Procedure Act was subject to the exclusionary provisions of Part 3.11 of the Evidence Act, Mr Hodgkinson submitted that the Court continued to have the "general discretion" to exclude evidence as discussed in these authorities, albeit that this "general discretion" was now properly identified in those provisions of the Evidence Act. So much was consistent with recent judgments of the Court of Criminal Appeal when discussing the admission of a statement under s116: see Gover and Grant.

69 Having regard to the terms of ss135 and 137 of the Evidence Act, it was of particular importance, on the defendant's submission, to properly assess the probative value of the McKellar evidence, as that term was defined. It was the assessment of the probative value of the evidence to which Mr Hodgkinson directed the substance of his submissions. In that regard, senior counsel for the defendant emphasised that the "quality of the evidence in the deposition" was seen as "fundamental" and of "crucial" importance in the decision of the Privy Council in Scott and the Court of Criminal Appeal in Grant when considering the exercise of the general discretion in the context of evidence under cognate statutory provisions to s112. It was the "quality of the evidence" that should guide the Court when assessing its probative value.

70 The starting point for assessing the probative weight of the evidence of Mr McKellar, on the defendant's submission, was to recognise that coronial proceedings were proceedings of a particular kind directed to a limited purpose. The Coroner was not at large as to the matters he could investigate. He was not there to conduct a trial under the Occupational Health and Safety Act. Sections 21, 22 and 22A of the Coroners Act limit the matters to which the Coroner may investigate and the comments and findings that may be made in the coronial process. In addition, senior counsel noted that the proceedings before the coroner were not bound by the rules of evidence: s 33 of the Coroners Act.

71 Whilst it was conceded that the relevant authorities recognise that a lack of opportunity to cross-examine a witness is not, of itself, sufficient to warrant the exercise of discretion to exclude evidence from proceedings, Mr Hodgkinson emphasised that these authorities dealt with material arising out of committal proceedings. The present proceedings involved a coronial process that, on senior counsel's submissions, brought "additional factors [into] play here", noting in particular the inherently different features and restrictions of the coronial inquiry process.

72 Compounding those difficulties with the "quality of the evidence", it was submitted, was the fact that the McKellar evidence was unreliable. That the evidence was unreliable was the foundation for the defendant's challenge to both the probative value of Mr McKellar's evidence, and to the identification of prejudice that the defendant would face, were the McKellar evidence to be admitted in the proceedings.

73 In support of the proposition that the reliability of evidence was a factor relevant in the assessment of probative value, Mr Hodgkinson took the Court to the judgment of McHugh J in Papakosmas at [86] where his Honour stated: [86] The distinction which the Act makes between relevance and probative value also supports the view that relevance is not concerned with reliability. Probative value is defined in the Dictionary of the Act as being "the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue." That assessment, of course, would necessarily involve considerations of reliability. "Probative value" is an important consideration in the exercise of the powers conferred by ss135 and 137. An assessment of probative value, however, must always depend on the circumstances of the particular case at hand.

74 It was submitted that, whilst the issue of reliability does not arise in the determination of relevance, it is a significant factor when assessing its "probative value". As for the prosecutor's reliance upon the judgment of Hunt CJ at CL in Carusi and the requirement to take evidence at its highest when approaching the balancing exercise required by ss135 and 137 of the Evidence Act, Mr Hodgkinson submitted that the observations of Hunt JA in that case and the decision of the House of Lords in The King v Christie [1914] AC 545 to which his Honour referred, were in made in the context of proceedings in which a jury was the trier of fact. In that context it would have been inappropriate and indeed in error for the trial judge to exercise the discretion to exclude evidence in a manner that would be tantamount to determining the reliability of the evidence. In any event, the decision in Carusi was not dealing with evidence to which the Evidence Act applied - the judgment of McHugh J in Papakosmas was to be preferred, coming later in time and dealing specifically with the provisions of the Evidence Act.

75 On the defendant's submission, in light of the distinction between the role of the trial judge and that of the jury, it was important to note that Courts have referred to the term "unfair prejudice", insofar as the operation of s137 is concerned, as being "a real risk that the evidence will be misused by the jury in some unfair way": see R v GK (2001) 53 NSWLR 317 at [30] and Papakosmas at [91] (per McHugh J). In that context, one of the issues that often arises is whether an appropriate direction can cure or overcome the relevant prejudice: see Le at [97] as an example.

76 Whilst it was contended that s137 of the Evidence Act was relevant to all criminal proceedings, the considerations which inform the operation of that provision in the more regular criminal context, involving a jury, "are not the same considerations relevant to this matter as a consequence of it being heard by a judge alone". On Mr Hodgkinson's submission, it could not be said that the trial judge's mind would be affected in the same way as a jury, or that the judge sitting alone would use the evidence in some unfair way. Whilst in a jury trial it may well be appropriate to have little or no regard to the impact of other evidence in the trial when assessing reliability and probative value for the purposes of exercising the "general discretion" as the trial judge cannot subvert the role of the jury, no such reservation should or does properly exist where a trial judge is the trier of fact.

77 On senior counsel's submission, the approach of McHugh J in Papakosmas at [86] is appropriate to ensure the proper application of s137 of the Evidence Act where a judge was sitting alone. In such circumstances, it was submitted, it is appropriate for the judge to assess the probative value having regard to the reliability of the evidence tendered: see Gray J in Gencay [2002] ACTSC 114 at [19] where a similar approach was adopted.

78 When approached in that way and when assessing reliability of evidence for the purpose of exercising the "general discretion", it was appropriate not only to have regard to the inherent unreliability of the evidence, brought about by the nature of the evidence itself (that it is hearsay or otherwise inadmissible), but also the other evidence in the case.

79 On Mr Hodgkinson's submission, this was consistent with the observations of McHugh J in Papakosmas where, having emphasised that considerations of probative value as defined "would necessarily involve considerations of reliability", his Honour stated "an assessment of probative value …must always depend on the circumstances of the particular case at hand" (at [86]).

80 Such an approach was supported, on senior counsel's submission, when one has regard to how the Court of Criminal Appeal has examined whether the relevant "general discretion" should have been exercised to exclude evidence that would otherwise have been admissible under s116 of the Criminal Procedure Act or s 409 of the Crimes Act. In this regard the defendant pointed to Stackelroth, Gover and in particular, the judgments of Smart JA in Grant and Sully J in Burrell. In each of those decisions, on the defendant's submission, the Court was not having regard merely to the inherent reliability of the evidence in question, but was comparing the evidence tendered to other evidence in the proceedings so as to assess its probative value. Such an approach was further reinforced by reference to the judgment in State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (1999 160 ALR 588 at [88] and [93] per Kirby J and at [63] per Gaudron, Gummow and Hayne JJ where their Honours reinforced the idea that principal regard should be had to other objective evidence in the proceedings, when cautioning against placing excessive weight on a witnesses demeanour.

81 Whilst, in response to questions from the Bench, Mr Hodgkinson conceded that such an approach would, in terms of practical effect, result in the probative value of evidence varying throughout the course of a trial, it was senior counsel's submission that this was no different to any other evidentiary issue that may arise. Having accepted that such an approach may result in evidence tendered early in proceedings being treated more favourably than it may have been had it been tendered later in the proceedings and after a greater volume of evidentiary material had been admitted, on the defendant's submission, this was an entirely regular proposition as it was always open for an earlier ruling on evidentiary issues to be reopened in light of evidence received later in time: see Steffan (1993) 67 A Crim R 506 at 511. Indeed, on senior counsels submissions, the very purpose for holding a voir dire is so that evidence may be tendered to permit the resolution of an evidentiary issue.

82 Where a judge is sitting alone, there is no basis for adopting the same principles for the determination of what constitutes a "danger of unfair prejudice" as is applicable in proceedings involving a jury. A judge sitting alone has wider capacity to consider various matters relevant to the particular case when determining what would constitute "unfair prejudice". Whilst a lack of opportunity to cross-examine Mr McKellar was not sufficient in and of itself to warrant the exclusion of the evidence as unduly prejudicial, when that fact was coupled with the serious questions surrounding the reliability of that evidence, its probative value was so insignificant as to render its receipt tantamount to unfair prejudice as identified in s137 of the Evidence Act, or at the least warranting the exercise of discretion as provided in s135 of that statute.

83 In support of the contention that the McKellar evidence was "totally unreliable" and "entirely devoid of any probative value", senior counsel for the defendant took the Court, in detail, through the entirety of Mr McKellar's evidence.

84 Whilst the specific challenges to the relevant passages of the evidence will be dealt with later in this decision, it is appropriate to note that this submission was substantially premised upon references to the telephone records found in exhibits S and T, noting in particular the absence of telephone calls to the deceased's mobile phones at or around the times that had been specifically identified in the McKellar evidence. On senior counsel's submission, there was no record to confirm that the conversations identified in the McKellar statement ever occurred. Further, it was submitted that the telephone records identified other telephone calls from Mr McKellar to the deceased that were not referred to in the McKellar statement, or in the evidence given before the Deputy Coroner. There was nothing to explain why those other telephone conversations were not referred to in the McKellar statement, nor, due to Mr McKellar's tragic demise, was there any opportunity to cross-examine so as to uncover what was discussed in those conversations or to clarify ambiguities in the content of those found in the McKellar statement. There was simply no opportunity to test the observations set out in the McKellar statement.

85 Mr Hodgkinson, contended that the lack of opportunity to cross-examine was of particular significance in these proceedings. On his submission, the circumstances of these proceedings were distinguishable from those found in the authorities to which the Court had been referred, as in this case the relevant evidence largely involved conversations between two persons, both of whom were now deceased. In the other cases to which the Court had been referred, there was at least some method of testing the relevant evidence, be it by way of denial of a party to a conversation or in some other fashion. There was simply no means by which either the fact of or the content of the relevant conversations as identified in the McKellar evidence could be tested. Moreover, to the extent that the conversations could be cross-referenced against telephone records or other objective evidence such as the Safe-T-Cam records in exhibit 30, the McKellar evidence was either unsupported or plainly inconsistent and contradictory.

86 On the defendant's submission, when turning to the exercise of discretion in these proceedings, it was instructive to have regard to those decisions relating to the operation of s116 of the Criminal Procedure Act and the way in which those decisions have approached the operation Part 3.11 of the Evidence Act: see, for example, Gover and Grant.

87 As to the exercise of this "general discretion", having regard to the decisions of Scott, Brotherton and Stackelroth, the defendant contended that a lack of opportunity to cross-examine, whilst not of itself sufficient to warrant the exclusion of evidence in the exercise of the Court's power contained in ss135 and 137 of the Evidence Act (or any discretion which remained at common law), this factor was still a relevant consideration in assessing the probative value of the evidence as required by those provisions: see also Gover at [19] and Grant. Mr Hodgkinson emphasised that this was of particular significance in the circumstances of these proceedings owing to the fact that both parties to the relevant conversations contained within the McKellar evidence were unable to give evidence in these proceedings.

88 In these circumstances, on Mr Hodgkinson's submission, not only did the prosecutor receive the "free kick" referred to in Brotherton and Stackelroth, the defendant "[didn't] even get the opportunity to play … the same game". Unlike the circumstances that pertained to the authorities referred to, where at least one party to the relevant transactions (usually the defendant) was available at the trial, in these proceedings, there was absolutely no way for the defendant to test that which was sought to be let into evidence.

89 The particular significance of this lack of opportunity to test Mr McKellar's evidence is reinforced, on the defendant's submission, when one has regard to the emphasis which has been placed on the "quality of the evidence" to be admitted under the relevant statutory provision by the Privy Council in Scott at 1259 and as adopted by Hunt CJ in Stackelroth and later by Smart JA in Grant at 141. The evidence should be excluded from these proceedings.

90 The starting point for this discussion (given the acceptance that at least part of the McKellar transcript was a deposition for the purposes of s112) must be a recognition that counsel for both the prosecutor and the defendant in these proceedings submitted this decision was the first to give rise to any substantial consideration under s112 of the Criminal Procedure Act 1986 and in particular, the first decision to examine the operation of ss135 and 137 of the Evidence Act in light of evidence adduced under that statutory provision. As such, this discussion relies significantly on an analysis of the statutory language in the light of the construction that had been placed on its statutory predecessors and cognate provisions found in Division 5 of Part 4 of that statute.

91 Having made those observations, I note that s112 of the Criminal Procedure Act, in its form as set out earlier in this decision, is essentially a re-enactment of s 409(1) of the Crimes Act, as it stood before its repeal by s 5 (together with item [14] of Part 2 of Schedule 3 of that amending Act) of the Crimes Legislation Amendment (Sentencing) Act No. 94 of 1999. Section 409 as it prior to its repeal has been set out earlier in this decision.

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.

93 Having referred to a series of decisions which had been relied upon by the appellant as demonstrating that some "residual discretion" vested in the Court under s409(1), Street CJ reaffirmed: For the foregoing reasons, I am of the opinion that his Honour was correct in holding that, once the ingredients were made out, he had no residual discretion ; and I would not be disposed to uphold the first matter that has been argued. (my emphasis). 94 Reynolds JA came to a similar conclusion, stating at 784: [I]n my view, s. 409 is concerned with the admissibility of evidence and the conditions precedent with which the trial judge has to be satisfied before the material becomes admissible. Once these conditions are satisfied and the material does become admissible, provided it is relevant, the only discretions are those which always reside in the presiding judge as to evidence presented in any form, such as the overriding discretion in criminal cases as to prejudice and probative value. There is no additional general discretion imposed upon, or granted to, the judge under s. 409. The admissibility of evidence does not, in general, depend upon the discretion of the judge, for otherwise the preparation of trials would become extremely hazardous. The use of the word "may" in its context is not directed to the judge, but invests the prosecutor with a right, just as s. 409 (2) gives a similar right to the accused to tender depositions in his favour, if he so desires and requires.

95 The judgment of Street CJ in Lynch has been referred to with approval on numerous occasions as authority for the proposition that s 409(1) afforded no "residual discretion", subject to the "general discretion" that was always available at common law to ensure that a criminal trial was fair to the defendant: see Reg v Farquhar (unreported, Court of Criminal Appeal, 29 May 1985) at 24 - 25, Gorman v Fitzpatrick (1987) 32 A Crim R 330 at 337, Brotherton at 306, Stackelroth at 441 (per Hunt CJ at CL with whom Dunford J agreed in this regard) and at 451 per Allen J), Grant at [59] - [60] per Smart JA (with whom Spigelman CJ and Sully J agreed). The parties to these proceedings have not, properly in my view, urged any different construction as to s112 than was placed on s 409(1) by Street CJ in Lynch.

96 I note that a similar issue was covered by the Privy Council in Scott in a judgment dealing with two appeal proceedings from decisions of the Court of Appeal of Jamaica. The issue in that decision (similar to both sets of proceedings), as identified in the judgment of Lord Griffiths (at 1251) was "whether a trial judge in a criminal case … has a discretion to refuse to admit a sworn deposition of a witness who has died before the trial, and if so in what circumstances the discretion should be exercised". The evidence in both proceedings was identification evidence and in both cases, the relevant witness, having given a deposition during a preliminary criminal procedure, had died prior to the substantive trial.

97 Lord Griffiths, having identified that "in each case the vital evidence of identification was that contained in the sworn depositions of the deceased witnesses", without which there would have been insufficient evidence to put any of the defendant's to trial, referred to s 34 of the Jamaican Justice of the Peace Jurisdiction Act, a provision in terms not materially different to s 409(1), to observe: But no similar statutory discretion is bestowed on the court if the witness is dead or gravely ill. The judgement of Carberry JA in the appeal of Scott and Walters contains a masterly analysis of the historical background of section 34 and the corresponding provisions contained in English statute and common law. Their Lordships accept his conclusion that no statutory discretion is bestowed upon a judge by section 34 to exclude a deposition if a witness is dead or too ill to attend court. If such a statutory discretion had existed it would have been unnecessary to provide specifically for such a discretion when the two additional grounds of admissibility, namely absence from the island and insanity, were subsequently added to the statute.

There remains however the further question whether, even if a deposition is admissible under section 34, there exists at common law a power in a judge to refuse to allow the prosecution to adduce it in evidence.

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.

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.

The only area of general discretion suggested as being relevant in the present case was the first. I agree with Allen J that, for the purposes of the exercise of this particular discretion, the unavailability of the witness for cross-examination at the trial may be relevant to a consideration of the probative value of the evidence, ( Reg v Brotherton at 101) although I repeat that that fact alone is insufficient.

101 The continued existence or otherwise of this common law "general discretion" referred by Street CJ in Lynch and Hunt CJ in Stackelroth, in light of the enactment of the Evidence Act, was touched upon briefly by Smart JA in Grant at [84] where, having identified (at [68]) that the Evidence Act "did not arise in Stackelroth", his Honour stated (at [84]): [84] In Stackelroth the Evidence Act 1995 did not fall to be considered. Part 3.11 of the Act deals with Discretions to exclude evidence. Section 137 (probative value outweighed by danger of unfair prejudice to defendant - mandatory exclusion), s.135 (probative value substantially outweighed by the danger that evidence might be misleading or confusing or cause or result in undue waste of time) and s.138(1) (evidence obtained improperly or in contravention of an Australian law or in consequence thereof) cover much of the ground covered by the general discretion at common law. There are exclusionary discretions such as those contained in Part 3.4 relating to admissions.

102 His Honour then continued to refer to a broader basis to reject evidence in the exercise of discretion - that is, where the relevant evidence would result in "an unfair trial" (at [85]) as follows: 85 The question remains whether the Court still retains the discretion to exclude otherwise admissible evidence where that is necessary to ensure a fair trial, if the discretions conferred by the Act do not cover the position which has arisen. As I am of the opinion that the use of the evidence in question (the prescribed statement) would not result in an unfair trial for the appellant the question need not be answered and it would be best left to a case where the Court receives full argument on the Evidence Act 1995 and authorities such as McDermott (1948) 76 CLR 501 at 506-507, 513-515; Lee (1950) 82 CLR 133 at 150-151; Macpherson (1981) 147 CLR 512 at 519-520; Cleland (1982) 151 CLR 1 at 18, 31, 34; Phillips (1985) 159 CLR 45 at 51. I would be reluctant to see such a discretion disappear as it is an important aspect of a court's ability to ensure a fair trial. Experience has shown that it is necessary. It enables the Court to deal with new and unforeseen situations.

103 I also note the manner with which the "general discretion" at common law and the discretions provided in Part 3.11 of the Evidence Act were treated, by the Court of Criminal Appeal in Gover.

104 In addition, it is useful to note what was stated by the Court of Criminal Appeal in Gover, insofar as it rejected a submission that relevant provisions of the Evidence Act should be seen as having enacted an implied repeal of s 409 (at [20] - [22]:

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.

105 When discussing the exercise of discretion in this context, it is important to recognise that many of the authorities referred to above, relate to objections in relation to a "statement" being received into evidence, as opposed to a "deposition", as has been the subject of dispute in these proceedings: see Brotherton, Stackelroth, Gover and Grant, although I do note that the original decision in Lynch, being determined under s 409 as it stood prior to the insertion of subsection (7), was in relation to a deposition as was the House of Lords in Scott. The distinction is significant in that s 409, following its amendment by the Crimes (Procedure) Amendment Act 1983 No. 170 so as to insert subsections (7)-(11) (now enacted as s116 of the Criminal Procedure Act: see Gover (at [9]) and Grant at [56]) did, in itself, provide what has been referred to as a "residual discretion", separate and distinct from what I have referred to above as the common law "general discretion" that existed to ensure a fair trial (see Brotherton at 306, Stackelroth at 440). Whilst it has been held that "different factors" (see Grant at [90], referring to Hunt CJ in Stackelroth at 443) inform the exercise of these two discretions and that the exercise of the "general discretion" will only arise after the Court has otherwise determined the evidence should not be excluded by the "residual discretion" (see Grant at [90]), it has been observed that "there may be a degree of overlap" between them and "some factors will be common to the exercise of both discretions" (see Grant at [90]).

106 Whilst the objection in these proceedings falls to be determined under s112 of the Criminal Procedure Act, I merely note the distinction at this point as many of the authorities to which I have been referred, having been decided under s116 or its statutory predecessor, to a considerable extent, blend the discussion surrounding the exercise of the "residual discretion" found in that latter provision, with the broader "general discretion" to exclude evidence where on balance the evidence has been considered overly prejudicial or such as would otherwise lead to unfairness.

107 It is the exercise of this "general discretion", now more properly identified as a discretion to exclude evidence under the provisions of Part 3.11 of the Evidence Act, which forms a substantial issue in this matter. However, before that issue is discussed, the first issue requiring resolution surrounds the defendant's contention that the McKellar statement, despite its having been read onto the record and transcribed (as set out in exhibits Y and Z), did not form part of the "deposition" for the purposes of s112 (this question arises so as to determine whether the Court would exercise a "residual discretion" of the kind discussed in the authorities with respect to the McKellar statement under s116 of the Criminal Procedure Act)

108 I note that no issue was taken as to the accuracy of "the record" - that is, the sound recording of the proceedings before the Deputy Coroner: cf Attard; Mifsud.

Are Exhibit's Y and Z a "deposition" for the purposes of the Criminal Procedure Act?

109 The answer to this issue is, in my view, a matter of statutory construction and in particular, the constructions of s112 of the Criminal Procedure Act. In that respect, I note that the consistent theme throughout the various subsections of that provision is the identification of "the deposition" as "the record" as evidenced by "the transcript" (noting of course that both the record and the transcript are required to be identified as correct by evidence on oath).

110 The starting point is to recognise that s112 in its opening words refers to "a deposition …". Subsection (2) refers to form requirements of "the deposition", requiring that it either "must be in writing, signed by the justice by or before whom the deposition was taken", or "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" (my emphasis). Subsection (3) identifies further formal requirements where "a written transcript", as identified in subs (2)(b) is relied upon as the relevant deposition - it requires proof "on oath" that "the record so made is a true record of the matter so deposed" and "that the transcript of the record is a correct transcript of that record". I note no issue has been taken in relation to subs (3). Subsection (4) is significant in these proceedings and will be discussed later, however, for present purposes I note that it provides "if it appears from the deposition … that it was made" in certain circumstances, the "the deposition is taken to have been so made". Similar observations can be made of subs (5).

111 The final subsection of s112, that is subsection (6), is of considerable significance. It confirms that a deposition for the purposes of that section may be a deposition taken before a "coroner holding office under the Coroners Act 1980". As identified earlier in this judgment, the term "deposition" is defined in the Coroners Act as meaning "a transcript certified in the manner prescribed by regulations … of the deposition so recorded". No issue has been taken as to the certification requirements there referred to. The interaction of these provisions reinforces the conclusion that I otherwise have reached from a reading of the provisions of the Criminal Procedure Act alone - that is, the relevant deposition for the purposes of s112 is the record of proceedings as disclosed in the relevant transcript of proceedings. See for example s114 and the facilitative mechanism provided therein for the admission of "a deposition", as evidenced by "a written transcript of matter recorded by means … authorised by law for the recording of depositions". 112 I should also note that Mr Hodgkinson was content for the transcript to be tendered, rather than to require the actual tapes of the proceedings before the Coroner to be tendered.

113 This conclusion is entirely consistent with the judgment of the Court of Criminal Appeal in Attard. In that judgment the Court of Criminal Appeal, constituted by Walsh JA (with whom O'Brien J agreed) and Jacobs J, had cause to discuss the requirements of s 409(1)(b)(ii) of the Crimes Act as it then stood - the issue being whether transcript of proceedings that had been certified by a supervisor of the person who had made it, satisfied the requirements of that provision as being properly proven "on oath". The following observations of Walsh JA are apposite (at 758-759): In the language of paragraph (b)(ii), there is a clear distinction between "the record" of the matter deposed and "the transcript" of the record. It is the record and not the transcript which is required to be "made, by any means, other than writing, authorized by law". The relevant authorisation by law is to be found in s 36(4)(b) of the Justices Act 1902, as amended, which reads: [the relevant section was then set out and his Honour continued:]

In this provision, there appears to be a shifting of the sense in which the word "deposition" is used so that it has a dual meaning. What the witness says constitutes the deposition which is to be recorded by the means specified, but it is "the deposition as so recorded" which need not be read or played over to the witness or signed.

Leaving aside for later consideration the effect of subsection (4) of s 409, I think that what is necessary to admissibility is proof of the facts which are specified in subsection (1), coupled with proof, if paragraph (b)(ii) is relevant, that the record was made by authorised means. The facts thus specified are not required by the section to be proved in any particular manner and they may be established by any evidence which is sufficient to satisfy the judge, and literal accuracy is not necessary. This view of s 409 (in its earlier form) and of its relationship to the formal requirements of the Justices Act and the regulations made under it is supported by Attorney General v Jackson (1906) 3 CLR 730 and R v Branscombe (1921) SR (NSW) 363.

But subsection (4) has been inserted in s 409 and it gives a defined meaning to the term "deposition" where firstly occurring in subsection (1). The effect of it seems to be that, if the transcript was not certified in accordance with r 6 of the regulations made under the Justices Act, then there was no "deposition" at all within the meaning of s 409(1). The certification required by reg 6 is that the transcript "shall be certified as correct by the person making the same". On the evidence given at the trial, a number of persons could be said to have taken part in the total process by which the transcript came into being. As the witness gave evidence, the sound was recorded on a master tape and also on short tapes. The typing out of the evidence, as short tapes were played over, was done in sections by several different typists who worked under the supervision of Mrs Smith. She took these typescripts and checked them against the master tapes on which the sound had been recorded independently of the recordings made on the shorter tapes and, according to the evidence of Mrs Smith, these were of a better quality than the recordings on the shorter tapes. She made such corrections as were necessary and certified the transcript thus complied as correct.

If several typists working in relays typed the evidence directly as it was given by a witness and the typed sheets were then joined together, it may well be that the "transcript" so obtained should be regarded as "made by all the typists". But the "transcript" with which we are here concerned is not a transcript of what the witness said but a transcript of the "record" of what he said. The person who took part in monitoring that record and in typing what appeared on it did so under the supervision of Mrs Smith, who then checked all that material against the master tape record to ensure, so far as she could, that in the end, there should be an accurate transcript of the whole of the record. In these circumstances, I am of opinion that it could properly be found that it was Mrs Smith who "made" the transcript, that is, the transcript "of the deposition as so recorded". It must be acknowledged, however, that there is considerable force in the view that all the group of persons consisting of Mrs Smith and those who typed sections of the transcript from the shorter tapes should be regarded as the persons who made the transcript. On that view, the practice which ought to be followed whenever there is a recording of evidence by an authorised means other than writing is that, in accordance with reg 6, all the persons who take part in the preparation of the transcript should be authorised to do so by the Clerk of the Justice or Justices who directed that the depositions be so recorded and then the transcript should be certified as correct by all those persons. In the present case, a positive decision on the point is not necessary, because I am of opinion for another reason that the imperative requirements of s 409 were not satisfied.

One of those requirements is, where the deposition is not "taken down in writing", that it be proved at the trial that "the record so made is a true record of the matter so deposed". These words in paragraph (b)(ii), in which the present tense is used, are followed immediately by the words "and was made in the presence of the accused". Although by force of subsection (4), the word "deposition" is to be read as referring to the transcript, it remains a requirement laid down by subsection (1) that proof be given that the "record" (not the transcript) is a true record. In my opinion, this requirement cannot be satisfied if, at the time of the trial, the record itself is not in existence . (my emphasis)

114 His Honour continued to discuss the need for proof that "the record" of proceedings was accurate, identifying that where "the deposition is recorded by some different authorised means, it is provided that it is not necessary that it be read or played over to the witness or signed by him or by the Justice" and as such "the safeguards, which would otherwise exist, on the completeness and correctness of the deposition are not available". Whilst his Honour's decision is not directly on point, it is clear, to use his Honour's words, that "the word deposition is to be read as referring to the transcript".

115 I should note that Attard was disapproved of by Street CJ in R v Tangmarasuk (1986) 7 NSWLR 551 at 553 - although this was a reference to the judgment of Jacobs J relating to another issue entirely - it in now way touched upon the issue presently under consideration.

116 It would also appear that the term "deposition" carried with it a particular meaning at common law, although it would not appear to relevantly differ from that referred to in the Coroner's Act.

117 The transcript of these proceedings, as identified in exhibit Z and as amended by exhibit Y, included a reading of the McKellar statement (exhibit X) onto the record of the proceedings - that is, the sound recording as disclosed in the transcript contained the terms of exhibit X (from paragraph [3] onwards). Whilst there may well be some force in Mr Hodgkinson's submission in so far as it related to the document exhibit X itself, I am not convinced that the relevant "deposition" is other than the record of the proceedings before the Coroner; that is, the sound recording before the coroner, as disclosed in the transcript in exhibits Y and Z, including the reading of the statement onto the record.

118 Mr Hodgkinson contended that the only evidence that formed part of "the deposition" was the answer given by Mr McKellar following the reading of his deposition onto the record by Inspector Lund. That submission, whilst superficially attractive, fails to recognise that it is "the record" of the proceedings as disclosed in "the transcript" that comprises the relevant deposition. To take Mr Hodgkinson's submission to its necessary logical conclusion, if counsel or the Bench were to pose a question to a witness and that question formed part of the transcript relied upon as disclosing the relevant "deposition", it would mean that the question would have to be excised from the transcript (conceptually if not physically) in order to properly identify "the deposition". If such a proposition were correct, it would often times render the relevant "deposition" entirely nonsensical. The submission ignores the practical distinction between a "deposition" and a witness statement.

119 I am satisfied that s112 is applicable and that those portions of exhibit Y relied upon by the prosecutor as constituting a deposition, are "a deposition" for the purposes of s112 of the Criminal Procedure Act. I note for completeness that the defendant did not take issue with the tender of a portion of the transcript said to constitute the "deposition" (see the observations of Kirby P in Gorman v Fitzpatrick at 337-338). I also note the reference to those observations being "with respect, clearly wrong" in the judgment of Hunt CJ in Stackelroth at 441 footnote [14]).

120 Turning then to the application and operation of s112 of the Criminal Procedure Act, the starting point must be to determine whether there has been sufficient proof "on oath" of each of the matters identified in s112(1)(a)-(c). As was contended by Mr Skinner and conceded by Mr Hodgkinson, those matters require proof on the balance of probabilities: see s142 of the Evidence Act (see also Attard at 758).

121 The first of these matters is whether the relevant witness 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 "is absent from Australia": see s112(1)(a) and the discussion of s 409 in Mendham & Foster (1993) 71 A Crim R 382, Brotherton and R v Sinanovic (1992) 67 A Crim R 230. I note that Mr Hodgkinson did not wish to be heard on the issues raised by s112(1)(a).

122 Having regard to the evidence of the Inspector given on the voir dire, together with exhibit Q and exhibit R (which I note is admissible under s49(2) of the Births, Deaths and Marriages Registration Act 1995 as to both "the entry to which it relates" and "the facts recorded in the entry"), I am satisfied that Leonard Duncan McKellar is dead, and the requirements of s112(1)(a)(i) have been met.

123 Section 112(1)(b) and (c) will be referred to in one moment, however, it is necessary to firstly deal with the prosecutor's reliance upon s112(4). In that regard, on the prosecutor's submission, because "it appears from the deposition" that "it was made in the presence of the accused person", and "the accused person, or his or her counsel, had full opportunity to cross-examine the witness", then "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" (my emphasis).

124 This provision clearly shifts the burden of demonstrating that the "deposition" was not (a) made in the presence of the accused person (or counsel for the accused) and (b) that there has not been "full opportunity to cross-examine the witness", to the defendant, once it "appears" from "the deposition" that those matters have been satisfied.

125 As to s112(1)(b)(i), the deposition was taken by or in the presence of a justice, namely, the Deputy State Coroner (see s112(6)). I note, when acting in the office State Coroner, the Deputy State Coroner "has all the functions of the State Coroner and shall be taken to be the State Coroner": see s 4F(2) of the Coroners Act 1980.

126 Further as to s112(1)(b)(ii), whilst the defendant was not personally present before the Coroner on 11 June 2002 (as disclosed in exhibit U in the discussion between Mr Moses of counsel and the Coroner), I note that the defendant was both represented by counsel before the Coroner on 12 June 2002 (having regard to exhibits U, V and W), and it would appear was personally present on that day, as disclosed in exhibit V - that is, the defendant appeared before the Coroner on that day, was sworn, and indicated on the record that he chose not to give evidence before the Coroner having regard to the fact that he was facing the instant prosecutions for breach of the Occupational Health and Safety Act. In this regard, I am satisfied that it "appears from deposition" that the deposition "was made in the presence of the accused". So much did not appear to be opposed by the defendant's counsel.

127 The next issue then is whether there has been a "full opportunity" to cross-examine the deponent, Mr McKellar. The defendant put its submissions in this regard at two levels - that is, both at rebutting the presumption found in s112(4) and in demonstrating that the requirements of s112(1)(c) had not been satisfied.

128 Mr Hodgkinson contended the fact that there was no opportunity to test Mr McKellar's evidence by reference to telephone statements which were later served on the defendant demonstrated that there had not been a "full opportunity" for cross-examination before the Coroner. Further, on his submission, that contention was reinforced by the nature of proceedings before the Coroner - noting in particular that those proceedings are not bound by the rules of evidence: see s 33 of the Coroners Act. On the defendant's contention, the facilitative provisions of s112 are of no assistance to the prosecutor.

129 There is a difficulty in identifying exactly what constitutes a "full opportunity to cross-examine" a witness. The starting point, however, is to recognise that a "full opportunity" to cross-examine a witness must be considered in the context of the particular proceedings - including its nature and purpose and any inherent restrictions associated with such proceedings. Noting that the McKellar evidence was led in the context of coronial proceedings, it is relevant to have regard to s 32(1) of the Coroner's Act which provides: 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 . (my emphasis)

130 There can be no doubt that in proceedings before the Coroner, the defendant had a statutory right to appear and cross-examine Mr McKellar. So much is apparent from the judgment of the High Court of Australia in Annetts v McCann (1990) 170 CLR 596.The matter primarily concerned the dictates of natural justice before a coronial inquiry, gave Mason CJ, Deane and McHugh JJ there considered the operation of s24 of the Coroners Act 1920 (WA), a provision similar to the provision now found in s32 of the Coroners Act 1980 (NSW), as follows: The second matter which must be taken into consideration is that the purpose of the legislature in enacting s.24 of the Act was to resolve a dispute concerning the rights of interested parties to attend coronial inquests and examine and cross-examine witnesses. At the time that section was enacted, the prevailing, but not universal, view in England was that a coroner had an unfettered discretion to exclude any person from attending the inquest and an unfettered discretion to allow or refuse interested parties to be legally represented at the inquest: see Jervis, The Coroners Acts, 1887 and 1892, 6th ed. (1898), pp 24-25.

Against this background, the terms of s.24 of the Act provide no ground for concluding that the Act evinces any intention to exclude the operation of the principles of natural justice. The evident purpose of the section was to abolish a coroner's discretion and to give interested parties the absolute right to attend the inquest, to examine and cross-examine witnesses, and to be represented by counsel. The terms of s.24 , therefore, are explicable on historical grounds and provide no basis for concluding that the legislature intended to exclude the rules of procedural fairness except to the extent specified in that section. But, independently of the historical background of s.24 , it is impossible to accept that the legislature, in enacting that section, intended to exclude the rules of natural justice. It simply would not have occurred to anyone in the legal profession in 1920 that the common law rules of natural justice applied to an inquiry whose findings could not alter legal rights or obligations. (my emphasis)

131 That right is, of course, not at large. Section 32 identifies that the right to cross-examine is conditioned by reference to "matters relevant to the inquest or inquiry". The defendant was correct in its submission that coronial proceedings are for a limited purpose. However, what constitutes a "full opportunity" to cross-examine must be examined in context - so much was impliedly, if not expressly recognised in Mr Hodgkinson's submissions. In this regard, the inclusion of s112(6) plainly contemplates that a "full opportunity" to cross-examine will be analysed in the context of proceedings before the Coroner and as such the legislature must be taken to be cognisant of the nature of those proceedings when identifying what represents "full cross-examination" in s112(1)(c).

132 The defendant contended that it has not had a "full opportunity" to cross-examine as material, namely the phone records in exhibits S and T, had come to light following the completion of the coronial inquiry - although I note Mr Hodgkinson did concede that his client had been served with the prosecution brief prior to the coronial proceedings.

133 There are difficulties with the defendant's submission in this respect. Firstly, the practical effect of accepting such a submission would be to require the relevant coronial proceedings to contain all (or perhaps to put it in a manner more favourable to the defendant's submission, substantially all), of the material that was ultimately relied upon at a contested trial. I am not satisfied that the phrase "full opportunity" is to be read in that way.

134 Secondly, and more significantly, the statute refers to a "full opportunity" to cross-examine, rather than full cross-examination in fact. Subsection (1) of section 112 creates an objective set of criteria that must be established, on evidence, before it can operate. Leaving aside subsections (1)(a) and (b), subsection (c) requires one of two matters to be established - they are, 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". The "full opportunity" must be referable to the conduct of proceedings before the Coroner, as disclosed in the transcript of the record of the proceedings; that is, "the deposition". It cannot sensibly operate were it to read so as to be conditioned by circumstances which come to light following the completion of the coronial proceedings, in the manner asserted by the defendant. Such a construction would render the provisions of s112(4) otiose.

135 One can envisage innumerable circumstances that may prevent a party having a "full opportunity" to cross-examine a witness in coronial proceedings. For example, a limitation placed by the Coroner upon the time available or scope of material open to the cross-examiner. That, however, was not this case. From the terms of exhibits Y and Z relied upon by the prosecutor as forming the relevant "deposition", it is apparent that Mr Moses of counsel, who represented the defendant before the Coroner, did indeed cross-examine Mr McKellar (see T/S exhibit Y p 21 - 24). There is nothing in the transcript that would indicate that there was any restriction imposed by the Coroner on the duration of cross-examination, the breadth of the material which counsel could have covered in his cross-examination or any other restriction of any kind. I note that whilst the defendant could not himself summons material during the course of the coronial proceedings, it would have been open for the defendant to at least attempt to have the Coroner summons the material: see s35 of the Coroners Act 1980

136 In my view, s112, as with s409(1) discussed by Hunt CJ at CL (with whom Wood and Sharpe J agreed) in Brotherton (at 307), "is remedial legislation [which] should be given a wide and beneficial meaning so far as such a meaning can be seen to have been intended by the legislature". If the defendant's submissions were to be accepted then the beneficial provisions of s112 of the Criminal Procedure Act would be rendered largely ineffective by the ordinary course of investigative procedures following a coronial proceeding and prior to the commencement of a criminal trial. I am satisfied that "the accused person, or his or her counsel, had full opportunity to cross-examine" Mr McKellar during the coronial proceedings.

137 As emphasised in Hitchcock No.2, by reference to Smith v The Queen (2001) 206 CLR 650, the relevance of evidence in any given set of proceedings requires an identification of "the elements of the offence with which the accused stands charged," as the factual issues requiring resolution will be "issues about the facts which constitute those elements". The defendant stands charged with two offences: one under s15 of the Act and one under s16 of the Act. It is sufficient, for present purposes, to identify that the charges in these proceedings are particularised so as to allege a failure to ensure "sufficient rest stops whilst they were driving", a failure to provide appropriate rosters so as to avoid "the effect of fatigue and sleep deprivation", a failure to properly record and audit "driving hours ... to minimise the risk to employees of the effects of fatigue and sleep deprivation", a failure to warn employees against various hazards and to provide sufficient "information, instruction, training and supervision", together with a separately particularised failure to provide a "safe system of work to minimise the risk to employees of the effects of fatigue and sleep deprivation in respect of long haul truck driving".

138 Whilst initially the defendant took issue with the prosecutor not having identified precisely how the McKellar evidence was relevant to the charges as particularised, these matters were subsequently dealt with in the prosecutor's submissions in reply. I do not apprehend that this was a matter of particular controversy such as to warrant extensive consideration in this judgment.

139 It is sufficient to observe that evidence, if accepted, that the deceased was, significantly fatigued immediately prior to the accident which gave rise to the investigation and subsequent charges, is plainly relevant to the charges as summarised above. The McKellar evidence which went to the use of amphetamines on the part of the deceased again, if accepted may well be relevant to those aspects of the charges which relate to the use of amphetamines. I would note in particular that whilst there was a bald statement in the McKellar statement that "I know that Darri took amphetamines to stay awake", that evidence was qualified in the cross-examination during the coronial proceedings so as to relate it to use associated with the performance of work. Further, there is other material in the McKellar evidence, such as the location of Mr Haynes from time to time in the days preceding the accident, which, if accepted, may permit appropriate inferences to be drawn as to distances travelled and the time taken to do so. The McKellar evidence is plainly relevant and is, subject to other exclusionary provisions, admissible: see s 56 of the Evidence Act.

140 The issue then becomes whether there are matters "as otherwise provided by [the Evidence] Act", which warrant exclusion (see s56(1)). The debate which has taken place in this regard in these proceedings, yet again reinforces the accuracy of the observation that "the major battleground … will lie in applying the various exceptions once evidence is accepted as relevant": see Kirby J in Smith v The Queen at [25].

141 As to the operation of the various exclusionary provisions of the Evidence Act, leaving aside for one moment the provisions of Part 3.11 of that statute, I note the defendant conceded that if s112 were applicable and the evidence was considered relevant, then the evidence would be admissible.

142 Whilst the defendant did raise issues as to compliance with s65 of that Act, those submissions were directed to the assessment of the probative value of evidence and a recognition that hearsay evidence, by its very nature, is inherently unreliable. The submission was amplified by the assertion that hearsay evidence which would not otherwise comply with the requirements for admission in proceedings, were s112 not applicable, is of even lesser probative value. The fact that the probative value of the evidence was, on the defendant's submission, significantly reduced, was relevant to the balancing exercise required by ss135 and 137 of the Evidence Act.

143 Whilst there would appear to be some notion in the authorities as to the continued operation of s65 of the statute (see Gover), I consider that it is appropriate to approach the resolution of the issues in these proceedings by reference to the submissions of the parties. In any event, it would appear that the hearsay rule would not apply to evidence brought in reliance upon s112 of the Criminal Procedure Act, by virtue of s65(3) of the Evidence Act, which provides: 3) The hearsay rule does not apply to evidence of a previous representation made in the course of giving evidence in an Australian or overseas proceeding if, in that proceeding, the defendant in the proceeding to which this section is being applied: (a) cross-examined the person who made the representation about it, or (b) had a reasonable opportunity to cross-examine the person who made the representation about it.

144 An "Australian or overseas proceeding" is defined in the Evidence Act to mean "a proceeding (however described) in an Australian court or a foreign court". An "Australian Court" is similarly broadly defined to include "a court of a State or Territory" or " a person or body authorised by an Australian law, or by consent of parties, to hear, receive and examine evidence". It would appear that proceedings before the Coroner's Court or committal proceedings are capable of falling within such a definition. As such, having regard to the requirements in s112(1), it would appear that if the evidence otherwise fell within s112, it would comply with the requirements of s65(3) of the Evidence Act.

145 The defendant's objections, having failed in relation to what may be referred to as its "general objections" as to the reliance upon s112 of the Criminal Procedure Act, resolved, in substance, into an attack on the admissibility of the McKellar evidence having regard to the mandatory provisions in s137 of the Evidence Act or in the alternative, the discretionary power of the Court to exclude evidence under s135 of that statute. In that regard, the defendant made broad submissions as to how the Court should approach the balancing exercise required by those provisions, together with specific submissions which directed its application to particular parts of the McKellar evidence. For convenience, I shall adopt a similar structure to the resolution of these issues; that is, by dealing firstly with the submissions as to the general or broad issues, followed by addressing the particular aspects of the evidence.

146 The terms of ss135 and 137 of the Evidence Act have been set out earlier in this decision and need not be repeated. It is sufficient to observe that any exclusion of evidence pursuant to the provisions of Part 3.11 of that Act requires an assessment of the "probative value" of the evidence and a balancing of probative value against the danger that the evidence might be unfairly prejudicial, misleading or confusing, or result in an undue waste of time: see generally as to this balancing exercise R v Blick (2000) 111 A Crim R 326 at [19].

147 The "probative value" of evidence is defined as "the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue". How the "probative value" of the evidence in these proceedings should be assessed has been a contentious issue. On the defendant's submission, insofar as the issue of probative value arose for consideration in the context of the provisions of Part 3.11 of the Evidence Act, when a trial judge is sitting as the trier of fact, probative value is to be assessed in a manner somewhat differently to when a jury may be sitting as the trier of fact. The reservation as to a trial judge subverting the role of the trier of fact does not arise and as such, on the defendant's submission, it is more appropriate to consider issues of reliability at an early stage. The approach of McHugh J in Papakosmas at [86] is appropriate to ensure the proper application of s135 and 137 of the Evidence Act where a judge was sitting alone, and is to be preferred to the approach of the Court of Appeal in Carusi. In short, it was appropriate, it was contended, for the trial judge to form conclusions about the reliability of evidence when assessing its probative value.

148 The prosecutor, on the other hand, contended that the approach of the Court of Criminal Appeal in Carusi was correct and that when assessing "probative value" in relation to the provisions of Part 3.11 of the Evidence Act, the evidence was to be taken at its highest. Reliability was an issue for the trier of fact in light of all the evidence in the proceedings and in light of the submissions of the parties at the close of the evidence. It was not, on the prosecutor's submissions, a matter that should be assessed at this stage of the proceedings.

149 Moreover, on the prosecutor's submission, even if reliability was to be seen as an issue of "probative value", it was incorrect to view factors, such as reliability, as both decreasing "probative value" and increasing "prejudice". Reliability, was not an issue of prejudice. Relevant "prejudice" does not arise from a risk that the defendant would be convicted because the evidence was supportive of the prosecution case. On Mr Skinner's submission, "prejudice" related to the risk that evidence may be misused in some way. Those considerations do not arise in this case as the trial judge is the trier of fact. On his submission, issues of reliability are properly seen as a question of weight, measured against all of the other evidence in the proceedings and in light of parties submissions.

150 In reply, Mr Hodgkinson conceded relevant prejudice, in the circumstances of these proceedings, could not be associated with the potential risk that the evidence may be misused, as the trial judge was the trier of fact. Nor was prejudice to be found in the fact that the evidence was probative of the prosecutor's case. Rather, prejudice was said to be found in the inherently unreliable nature of the evidence. Mr Hodgkinson pointed to the judgment of McHugh in Papakosmas where his Honour stated (at [86]): Probative value is defined in the Dictionary of the Act as being "the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue." That assessment, of course, would necessarily involve considerations of reliability. "Probative value" is an important consideration in the exercise of the powers conferred by ss135 and 137. An assessment of probative value, however, must always depend on the circumstances of the particular case at hand.

151 The passage from Carusi relied upon by the prosecutor is to be found in the judgment of Hunt CJ at CL (with whom Newman J and Ireland J agreed), where his Honour stated (footnotes omitted): It was for the jury, and not for the trial judge, to determine the factual issues at the trial. Applying the ordinary tests, there was clearly a case to go to the jury based upon the evidence in chief of Mrs McHugh which (if that evidence were accepted) was a strong one, and it was for the jury to determine which parts of her evidence they accepted and which parts they rejected. 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 of the witness upon which the Crown case depends. The trial judge can only exclude the evidence of such a witness where, taken at its highest, its probative value is outweighed by its prejudice effect; whereas this Court may use its supervisory powers to set aside a verdict where, the issue having been left to the jury, this Court is satisfied - on the whole of the evidence - that the jury ought nevertheless have had a reasonable doubt.

152 I would note, the judgment of Carusi was approved by the Court of Criminal Appeal in Singh-Bal, in which Hunt CJ at CL (with whom Grove J and Hulme J agreed) stated (at 402 - 403): The first ground of appeal is that the judge erred by admitting the evidence of the police officers as to the admission made to them by the appellant. The attack is upon the judge's decision, following the voir dire examination, that he would not exclude the evidence pursuant to s137, although it is also now asserted that, alternatively, he should have excluded the evidence pursuant to s135 upon the basis that its probative value was substantially outweighed by the danger that the jury may be misled or confused by it.

In my opinion, and with respect, the whole voir dire procedure upon that basis was misconceived. The question whether an admission of guilt was made is entirely one for the jury; it cannot be decided by the trial judge. If the jury accepted that the admission was made, then there was no relevant prejudice to the appellant at all. All that the evidence did was to tend (quite properly) to establish the Crown case. If the jury accepted that the admission was made, there was no danger that they would use the evidence that it had been made upon some basis logically unconnected with the issues in the case. That was the way in which the Christie discretion was interpreted at common law. That is how the Law Reform Commission intended s 137 to be interpreted. If the jury accepted that the admission was made, there was no danger that the jury could have been misled or confused by it. The content of the admission could not have been clearer. There was no submission made either at the trial or before this Court that, even if Const Henderson's evidence were to be accepted, the possible ambiguity in part of that evidence was such that the jury may misinterpret it as amounting to a clear admission. That is no doubt because any ambiguity in that evidence was removed by the certainty of the rest of his evidence and the evidence of Sgt Fanning. All that counsel then appearing for the appellant was attempting to persuade the judge was that the evidence of the two officers was so suspect that the jury should not accept that evidence. The precise nature of the prejudice to the appellant appears to have been the danger that the jury might wrongly accept that evidence, although it was never stated in that way at the trial. That is not an appropriate subject of a voir dire examination either.

It is for the jury to determine which parts of the evidence they accept and which parts they reject. This Court has held 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 of the witness (or witnesses) upon which the Crown case depends. The trial judge can exclude the evidence only where, taken at its highest, its probative value is outweighed by its prejudicial effect; whereas this Court may use its supervisory powers to set aside a verdict where, the issue having been left to the jury, this Court is satisfied - on the whole of the evidence - that the jury ought nevertheless have had a reasonable doubt. The distinction between the two tribunals is clearly drawn in the cases. (footnotes omitted)

153 There is a clear tension between the observations of the Court of Criminal Appeal in Carusi and Singh-Bal that when exercising the discretion to exclude evidence the Court is to take evidence "at its highest", and the requirement in the observations of McHugh J in Papakosmas that issues of probative value "would necessarily involve considerations of reliability". I have not been taken to, nor have I been able to find any decision squarely determining the way in which to resolve this conflict. The issue has, however, been identified in judgments of the Court of Criminal Appeal: see for example Le and R v Yates, Parry, Hyland, Powick [2002] NSWCCA 520 and by commentators such as Steven Odgers in his text Uniform Evidence Law 5th Ed, at 438 - 439.

154 The only decision in which the Court of Criminal Appeal canvassed the matter directly, appears to be that in the joint judgment of Wood CJ at CL, Hulme and Buddin JJ in Yates, which I would note I was not taken to by counsel. That matter concerned an appeal by a number of persons who had been convicted of, amongst other things, murder. The relevant ground of appeal related to the evidence of Ms Renee Williams. Ms Williams had given evidence on a series of occasions (to a police officer at the time of the incident, to the Crime Commission, at a committal and in two statements prepared for the proceedings) that had been inconsistent and, on her own admission, false on a number of occasions and in a number of substantial aspects. On appeal, it was contended that the trial judge had erred in failing to exclude the evidence under ss135 or 137 of the Evidence Act.

155 Having observed that "undoubtedly the inconsistencies and untruthfulness in Ms Russell's evidence meant that, at the very least, her evidence required careful and close scrutiny" (at [242]) and that "it was, and is, relevant also to see to what extent her account accords with other evidence" (at [246]), the Court engaged in a process of comparing the evidence of Ms Williams to other evidence given in the proceedings (physical evidence which placed the appellants' at the scene of the crime and within the escape vehicle) (at [246] - [247]), concluding at follows (at [249]): 249 Although as we have said, Ms Russell's evidence required careful and close scrutiny, the matters to which we have referred demonstrate that, despite the fact that she had clearly been untruthful in much of her evidence, there were also grounds for accepting much of what she had said, and in particular, what may be referred to as her second stance. If that were accepted, then so could her evidence of the pre-trial identification of Parry. 250 The matters to which we have referred demonstrate that the description of Ms Russell's evidence as " fundamentally (or inherently) unreliable " is calculated to conceal the true situation. A deal of what Ms Russell had said in that part of her statement of 16 September, as was referred to in evidence, was demonstrably true. Other parts of it were significantly corroborated. The fact that she had been untruthful in some areas did not provide a reason for characterising all of her evidence in the way counsel for the appellants sought to do. (emphasis in original)

156 The Court then continued to discuss the application of ss 135 and 137 to the case then at hand (at [251] - [256]) (I note the emphasis, unless otherwise indicated, is in the original): 251 This conclusion, that there were grounds for accepting much of what Ms Russell had said, is fatal to the appellants' arguments based on the " danger of unfair prejudice " element in sections135 to 137. Those sections invite a comparison of the probative value of the evidence with, inter alia, any unfair prejudice (or the danger of such prejudice) arising in consequence thereof. " Probative value " is defined in the Dictionary to the Evidence Act to mean "the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue ". If what Ms Russell said in her second stance was accepted, those statements could rationally affect such an assessment and, although it was very much a matter of judgment whether this should occur, there was a clear basis for its acceptance. 252 On the other side of the comparison is " unfair prejudice ", or the danger thereof arising from the evidence. All evidence incriminatory of an accused which has a probative value, necessarily causes prejudice, but this is not the prejudice of which sections 135 to 137 (or for that matter s 192) speak. Prejudice argues for exclusion only if there is a real risk of danger of it being unfair: R v Lisoff [1999] NSWCCA 364. This may arise in a variety of ways, a typical example being where it may lead a jury to adopt an illegitimate form of reasoning, or to give the evidence undue weight. However, insofar as any prejudice flows from the legitimate use of evidence it provides no ground for the exercise of the duty or discretion arising under sections 135-137. 253 As we understand it, the principal argument for the appellants in this area was as follows: (a) Ms Russell's evidence was " fundamentally or (inherently) unreliable ".

(b) The extent to which that evidence could rationally affect the assessment of the probability of a fact in issue was therefore slight, if not non-existent.

(c) The jury might nevertheless accept that evidence and give more than slight or no weight to it.

(d) For that to occur would amount to prejudice which was unfair.

(e) Therefore there was a danger of unfair prejudice. 254 One may immediately put aside evidence which is of no weight whatsoever. If evidence has no probative value, it is irrelevant and should be excluded on that ground. Sections 135 to 137 are directed to evidence which is otherwise admissible. 255 In so far as the argument relates to evidence of slight weight it also fails. Whether evidence should be accepted, and what weight should be given to it, are ultimately matters for the decision of the tribunal of fact, which, in the trial before Ireland AJ, was the jury. It is not unfair, nor does it create a danger of unfair prejudice to leave those decisions to them, subject to suitable cautions or warnings where relevant. A fortiori is this so when regard is had to the fact that, all of the considerations which are said to demonstrate that the evidence should not be relied on can be, and no doubt were, advanced to the jury in argument. (my emphasis) 256 This conclusion accords with that in R v Carusi (1997) 92 A Crim R 52 at 65-66 and R v Singh-Bal (1997) 92 A Crim R 397 at 403 where this Court held that an assessment of probative value " does not permit the judge... to determine whether the jury should or should not accept the evidence ", and that it can be excluded " only where, taken at its highest, its probative value is outweighed by its prejudicial effect ". The approach which we have adopted makes it unnecessary to consider whether there should be any qualification to what was said in those cases, arising from the remarks of McHugh J in Papakosmas v The Queen (1999) 196 CLR 297 at para 86, to the effect that an assessment of probative value in the course of the exercise of powers under s135 and 137, would necessarily involve considerations of reliability.

157 This approach seems to accord with the observations of Gaudron J in Adam v The Queen (2001) 207 CLR 96 at [59] - [60], where her Honour stated: [59] The dictionary to the Act defines "probative value" to mean "the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue". That definition echoes the substance of s 55(1) of the Act which provides that "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". It is to be noted that the dictionary definition differs from s 55 in that it is not predicated on the assumption that the evidence will be accepted. [60] The omission from the dictionary definition of "probative value" of the assumption that the evidence will be accepted is, in my opinion, of no significance. As a practical matter, evidence can rationally affect the assessment of the probability of a fact in issue only if it is accepted. Accordingly, the assumption that it will be accepted must be read into the dictionary definition. And on that assumption, for the reasons given in the joint judgment, the prior inconsistent statements of Thaier Sako had substantial probative value. That being so, the combined effect of ss 103(1) and 60 of the Act was to make those prior inconsistent statements technically admissible in proof of the matters therein asserted.

158 On the other hand, in his text Uniform Evidence Law 5th Ed, Odgers observes (at 439) that: While it must be for the tribunal of fact to resolve questions of credibility, it is difficult to see why a court, aware that there are particular reasons for doubting the reliability of certain evidence, should not be empowered to exclude the evidence if it concludes that there is a real danger that the tribunal of fact will, even with the benefit of appropriate directions, misuse or significantly over-value the evidence: compare R v GAC (unreported, NSWCCA, 1 April 1997), p 18 per Gleeson CJ.

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.

160 On one view, the decisions of the Court of Criminal Appeal in Carusi, Singh-Bal and Yates are binding on me, sitting as a trial judge of this Court. I note, however, that the circumstances in which these observations were made were markedly different to those presently before the Court. In Carusi, Le and Yates, the evidence in issue was identification evidence. Identification evidence has been long recognised as having a particularly "seductive effect …[that has] frequently led to proven miscarriages of justice": Domican v The Queen (1992) 173 CLR 555 at 561. As their Honour's continued to observe, it was this feature of such evidence that "courts of criminal appeal and ultimate appellate courts … to lay down special rules in relation to the directions which judges must give in criminal trials where identification is a significant issue". Mr Hodgkinson contended that it was appropriate to confine the observations of Hunt J in Carusi to evidence of that kind. I would note, however, that the evidentiary issue in Sing-Bal related to purported evidence of an admission.

161 In the present case, the Court is dealing with evidence of a witness given during coronial proceedings. The evidence does not give rise to the concerns often associated with identification evidence. Rather, the evidence goes to the existence of and content of a series of conversations between two persons, who are now deceased. Many issues of the kind sought to be raised by the defendant would, in the normal course, be issues of credit. Similarly, in circumstances where evidence has come in under the facilitative provisions of the Criminal Procedure Act or its predecessors (or indeed the relevant provisions of the Evidence Act dealing with evidence from an unavailable witness), there is at least one party to the relevant conversation or event against which some assessment of credit or reliability can be made. Those sorts of issues are, in my view, quintessentially a question for the trier of fact to be determined in light of all the evidence in the proceedings. However in the present case, there is virtually no objective means to ascertain the accuracy of the evidence. Moreover, unlike Carusi, Sing-Bal, Le and Yates, there is no jury sitting as the tribunal of fact.

162 In these limited circumstances, I consider it inappropriate to assess probative value in the manner urged in the judgment of Hunt CJ at CL in Carusi and Sing-Bal. It must be remembered that this process ultimately requires the trial judge to form a conclusion as to "the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue". This conclusion has been likened to the exercise of a judicial discretion: see for example Blick at [19], where the Court of Criminal Appeal observed "a trial judge's estimate of how the probative value should be weighed against the danger of unfair prejudice will be one of opinion based on a variety of circumstances, the evidence, the particulars of the case and the judge's own trial experience" (I note I am conscious of the observations in [20] of that decision).

163 In circumstances akin to the instant proceedings, I consider that it is appropriate to be guided in the assessment of probative value by the observations of the Privy Council in Scott, where it was emphasised (at 1259) that "it is the quality of the evidence in the deposition that is the crucial factor that should determine the exercise of the discretion". I am also guided by the observations of Smart AJ (at 141) in Grant where his Honour held, by reference to Scott, "I agree that the quality of the evidence in the statement is a major factor but there may be other important factors. I would not wish to exclude these".

164 Whilst such an approach to the assessment of probative value may, on one view, be seen to be to some extent inconsistent with the observations in Carusi, Sing-Bal and Yates, I consider that such an approach is appropriate for the assessment of the objection to the challenged evidence having regard to the circumstances in which that evidence is led in these proceedings and the fact a trial judge is sitting as the trier of fact. The approach is thereby applicable only in these confined circumstances which, in my view, result in an approach which is plainly more beneficial to the defendant. I would, however, note that the admissibility of this evidence could later be the subject of an appropriate application: see Rogers v The Queen (1994) 181 CLR 251 - at 268-269 per Brennan J, R v Marshall (2000) 113 A Crim R 190 at [22] - [23] and Tugaga at 193-194.

165 The other element to be considered in the balance is "unfair prejudice". The defendant's submissions resolve themselves into two essential propositions that were said to give rise to unfair prejudice; namely, that the evidence of Mr McKellar was unreliable when one has regard to the remaining evidence on the voir dire (that is, both the telephone records tendered on the voir dire and the other evidence tendered in the trial), and secondly, the fact that the defendant cannot cross-examine or otherwise test the evidence sought to be tendered. On the defendant's submission, these two factors should tip the balancing exercise required in favour of the defendant and as such would mandate its exclusion under s137, or warrant its exclusion in the exercise of discretion: see s135.

166 It is well settled that relevant "prejudice", is not prejudice at large. As was observed by Hunt CJ at CL in R v BD at 139: 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.

167 Dunford J in R v Serratore (1999) 48 NSWLR 101 stated the position (at [31]) as follows: 31 "Probative value" is defined in the Dictionary to the Act as meaning the extent to which the evidence could rationally affect the assessment of the probability of the existence of the particular fact in issue; in this case, whether the appellant was involved in the death of the deceased. All relevant evidence led in the Crown case at trial is prejudicial to the accused, but it is only that of which the probative value is outweighed by the danger of unfair prejudice which is excluded; that is evidence which has only slight probative value but which carries with it a probability that it be misused by the tribunal of fact in a way logically unconnected with the issues in the case: R v Lockyer (1996) 89 A Crim R 457. See also R v Singh-Bal (1997) 92 A Crim R 397. (emphasis in original)

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)

169 What then constitutes using evidence in an "unfair way"? The starting point must be an identification of what is the appropriate use of evidence; namely, as material that can "rationally affect the assessment of the probability of" the relevant fact in issue. Evidence may only "rationally affect" the assessment of probability if it can be demonstrated to do so by a process of reasoning or logic. As was observed by the Australian Law Reform Commission (ALRC 26, vol 1, para 644, set out in Odgers at 439): By risk of unfair prejudice is meant the danger that the fact finder may use the evidence to make a decision on an improper, perhaps emotional basis, ie on a basis logically unconnected with the issues in the case. Thus evidence that appeals to the fact-finder's sympathies, arouses a sense of horror, provokes an instinct to punish, or triggers other mainsprings of human action may cause the fact-finder to base his decision on something other than the established propositions in the case. Similarly, on hearing the evidence the fact-finder may be satisfied with a lower degree of probability than would otherwise be required.

170 This would appear consistent with the way in which the general discretion to exclude evidence has been considered in the context of deposition evidence coming forward under similar statutory provisions; see, for example Scott at 1256 per Lord Griffiths, where it was held that the discretion is directed to evidence "although … admitted to prove certain collateral matters, there is a danger that a jury may attach undue weight to such evidence and regard it as probative of the crime with which the accused is charged". The judgment of Allen J in Stackelroth, would appear to a similar effect, noting his Honour's reference to the judgment of King CJ in R v Duke (1979) 22 SASR 46 at 47-48, emphasising that the fact that the evidence (in Stackelroth a purported admission) may be "ambiguous" was not relevant "prejudice" but was "simply a matter which goes to its probative value" - that being a matter for the trier of fact. Hunt CJ, in Stackelroth, having agreed with the conclusion of Allen J that "there was nothing relevantly prejudicial about this evidence in the present case" made some similar observations at 307: All that it did was that it proved the Crown case; there was nothing relevantly prejudicial in the sense of introducing material which, although not of itself probative (or only slightly probative) of guilt, was also probative of some other matter which may wrongly have been regarded by the jury as probative (or strongly probative) of guilt, such as propensity.

171 I should note it has been held that there must be more than a hypothetical risk of it being unfairly prejudicial in this way - the risk must be a real one. As was emphasised by Mason P in R v GK at [30]: [E]ven if the evidence carries a prejudicial overlay its genuine probative value must be put in the scales.

172 Of course, as Odgers went on to recognise, after having referred to the passage from R v BD set out above (at 440): Plainly, it is likely that this "danger" will usually only have significance in a jury trial. Where the trial is by a judge sitting without a jury, it will be an unusual judge or magistrate who is prepared to concede that a danger exists that he or she might be "unfairly prejudiced" by evidence.

173 Whilst perhaps relevant to the assessment of probative value, I am not satisfied that the "reliability" of evidence can be said to constitute relevant prejudice in the present circumstances. There is nothing in the evidence that gives rise to "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", that the evidence could be used "in a way logically unconnected with the issues in the case" or that there is anything in the evidence that may trigger "mainsprings of human action [that] may cause the fact-finder to base his decision on something other than the established propositions in the case".

174 In my view, absent concerns of "unfair prejudice" of the kind referred to above, and having regard to the fact that the assessment of probative value will, to some extent be conditioned by questions of reliability, the issue of reliability is quintessentially a matter for the tribunal of fact to be assessed having regard to the entirety of the evidence in the proceedings. In the present circumstances, I consider that the issue of reliability enters the scales of balancing exercise required by the relevant provisions on the side of probative value.

175 The second basis of the alleged prejudice was said to be the lack of opportunity to cross-examine. It would appear to have been broadly accepted that a lack of opportunity to test evidence in cross-examination can be seen as a basis for establishing "unfair prejudice": see for example R v Suteski (2002) 56 NSWLR 182 and the cases there referred to at [126].

176 This would appear consistent with the assessment of relevant prejudice for the purposes of discretionary exclusion at common law under the predecessors to s112 and 116. See for example, the observations of Hunt CJ at CL in Brotherton (1992) 65 A Crim R 301 (with whom Wood and Sharpe JJ agreed) at 307: In my opinion, the quality of the evidence which can be given at the trial is irrelevant to the determination by the trial judge as to whether the conditions imposed by s 409 have been fulfilled, although the weight to be accorded to particular parts of the statement may well become relevant in the exercise of the usual overriding discretion to exclude those parts of the statement where their probative value is outweighed by their prejudicial effect : Driscoll (1977) 137 CLR 517 at 541; Phillips (1985) 159 CLR 45 at 51.

177 Similarly, in Stackelroth, Hunt CJ (with whom Dunford J agreed in this regard at 455), again held, in the context of considering the admissibility of a statement under s 409(7), at 440: [S]omething 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 as appropriate in the circumstances to which s 409 is applicable.

178 Allen J made similar observations (at 454), noting that a lack of cross-examination "is an insufficient ground for excluding it - because that is a feature of every statement with which s 409(7) deals": see also his Honour's judgment at 452-453. To readily accede to this submission would be to effectively write the facilitative provisions of the Criminal Procedure Act out of the Act: to a similar effect regarding s 65 of the Evidence Act see Clark at [164] and Suteski at [101].

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.

It is the quality of the evidence in the deposition that is the crucial factor that should determine the exercise of the discretion.

180 Having set out this passage, Smart AJ (with whom Spigelman CJ and Sully J agreed), held: 78 The reasoning in Scott is powerful and contains a timely warning against being too ready to exclude the challenged evidence. However, in Scott there had been some cross-examination of the deponent at the preliminary examination and s.34 of the Jamaican Act did not contain the introductory words found in s.116(2), "Except in so far as the court otherwise orders." 79 While in the exercise of the discretion under s.409(7) (now s.116(2) Hunt CJ at CL and Allen J attached weight to the inability of the accused to cross-examine the deceased, he regarded the mere fact that the maker of the statement will not be available for cross-examination at the trial as an insufficient ground for excluding it because that is a feature of every statement with which s.409(7) (now s.116(2)) deals. The Privy Council emphasised in Scott that it is the quality of the evidence in the deposition (statement in the present case) that is the crucial factor that should determine the exercise of the discretion. I agree that the quality of the evidence in the statement is a major factor but there may be other important factors. I would not wish to exclude these.

181 The policy considerations that arise from the operation of s112 are clear and I would agree that they should be seen as "powerful" in the manner in which they inform the balancing process required under ss137 and 135. The power to exclude in such circumstances is one "that should be exercised with great restraint". In the context of the provisions of Pt 3.11 of the Evidence Act, this must be seen as a factor relevant to the assessment of what constitutes "unfair prejudice". I consider that the absence of opportunity to cross-examine at the trial, of itself, is therefore of only minor significance. I note the defendant acknowledged that the lack of opportunity to cross-examine was not, of itself, sufficient to warrant the evidence being excluded if it were otherwise admissible.

182 However, there is substantial merit in the defendant's submission that an inability to cross-examine is all the more significant in the present case, as the capacity to test the relevant matters contained in the McKellar evidence has been even more heavily constrained by the fact that the other party to the various conversations is now also deceased. As Mr Hodgkinson contended, there is, in large measure, no basis at all upon which the deposition can be tested. It is this factor which, in my view, magnifies the prejudice to the defendant in these proceedings so as to tip the balancing exercise in the defendant's favour, in relation to certain aspects of the evidence.

183 I should note, where I have determined to exclude evidence from the proceedings, I have done so by reference to the balance required under s137 rather than s135. It has not been necessary for the defendant to demonstrate that the "probative value" of the evidence is "substantially outweighed" by the danger of unfair prejudice as the conclusion that the "probative value is outweighed by the danger of unfair prejudice" is sufficient to enliven s137: see to a similar effect Serratore at [30].

184 Turning then to apply the general approach discussed above to the particular evidence that has been the subject of objection, it is convenient to deal with these matters on a point-by-point basis in accordance with the defendant's submissions.

185 As noted earlier in this decision, the relevant "deposition" is that of Mr McKellar and is to be found in pages 17 line 1 through to page 25 line 8 of exhibit Z on the voir dire, incorporating exhibit Y and its annexures. The procedure associated with obtaining that deposition has been discussed earlier in the judgment and need not be repeated here. For convenience I have set out the relevant material from Mr McKellar's evidence, followed by a brief précis of the defendant's submission (this should not be taken as an exhaustive recitation of the submissions put as there was considerable repetition in the objections taken) and concluding by resolving the issues raised by the defendant.

186 I turn firstly to the transcription of the statement (exhibit X) as read onto the record in the proceedings before the Coroner on 12 June 2002 (and as disclosed in exhibit Y). I shall deal with each objection seriatim (with the evidence not admitted marked in bold both here and in the following sections).

187 In relation to the following passage: I rang him about 8.30am on Wednesday morning 1st September 1999. I just called to see what he was up to and where he was loading. (He had been home on the weekend. He left Sunday night to go to Brisbane to unload. Then he went empty from Brisbane to Kempsey. He loaded bricks on Monday afternoon. Then he went to Nowra and unloaded at 8.30am in the depot. Then he had to wash the truck, which takes five to six hours. Then he went to the paper mill to unload back to Brisbane). He was in Brisbane at that time unloading. He told me he was going to load a Coca Cola for Sydney . He didn't leave Coca Cola until about 4pm.

188 The defendant contended that there was no independent record of this phone call. It was not to be found in exhibits S or T. There is no basis to establish this conversation nor its contents. It was, on the defendant's submission, totally unreliable. As for the contents of the purported conversation, the evidence was hearsay and inconsistent with other evidence. It was, moreover, inherently inconsistent in that McKellar could not have been told of some of the movements of the truck, in a conversation held at 8.30am on the Wednesday morning as they had not, as yet, occurred. Further, the representations were those of Mr McKellar not those of Mr Haynes and as such, s 72 of the Evidence Act is of no assistance. Evidence of this nature is of little or no probative value. It is prejudicial to the defendant and should be excluded from the proceedings.

189 I am satisfied that this evidence is quite ambiguous and that it is, in all the circumstances, of little probative weight and ought be excluded with the exception of the final sentence. In the final sentence, the location of the deceased and his truck is clearly identified. Evidence of the location of the truck at various times in the days prior to the accident is clearly relevant to the offence as particularised. Taken with other evidence, it is of considerable probative value. Moreover, as to the contentions as to reliability, this location was lent some level of support by other evidence - namely, evidence relating to the time he left the coca cola loading dock. I uphold the objection with respect to the bolded portion of the extract.

190 The next objection, related to the following passage: I rang him at 6.30pm that afternoon and he was fuelling up at Beenleigh. We talked for about 20 minutes. He said he had no sleep all that day and the night before. Mr Hodgkinson submitted that there was no independent record of this telephone call. If the time is accurate, there is a significant amount of time unaccounted for between the time of call and the time of the accident. Further, insofar as it asserts the deceased's location, it is a representation of Mr McKellar, not that of Mr Haynes - it was hearsay evidence to which s 72 is of no assistance. It is unreliable, as a consequence its probative value is very low and it is of considerable prejudice to the defendant. Moreover, as to the last sentence, it is evidence that should not be admitted as proof of the facts asserted in the hearsay statement.

191 This evidence clearly identifies a time at which the witness contacted the deceased and the deceased's location. The last sentence is also directly relevant to the issue of fatigue. Whilst I have had regard to issues of reliability, I consider it is plainly relevant and of some probative value. It is not prejudicial in the relevant sense. I consider that there is nothing to enliven s137 nor to warrant its exclusion under s135. The defendant's objection is refused.

192 The next portion of the evidence to which objection is taken, is to be found in the following passage: Darri has been working for his current employer, Jim Hitchcock for two months. During that time Darri has told me that Jim Hitchcock has been on his back all the time. By that I mean he always felt pressured into keeping strict schedules with little time for rest in between loads. No matter how he tried and what he did he couldn't please the man

193 The defendant contended that this material was not a representation of Mr Haynes, but an expression of opinion or impression of Mr McKellar. To the extent that they are representations of Mr Haynes, they are so broad as to be incapable of given any meaning. There is no basis of testing this evidence or extracting from it anything that would be of assistance to the Court. It is prejudicial to the defendant and ought be excluded.

194 In all the circumstances, and in particular having regard to form of the evidence, I consider this material to be so ambiguous as to be almost meaningless. It is of very little, if any, probative value. I uphold the defendant's objection.

195 The final passage from the statement read onto the record to which the defendant took objection, was in the following terms: I know Darri took amphetamines to stay awake.

196 The defendant submitted that this passage was "really an assertion as to knowledge without a basis for the knowledge". Whilst Mr Hodgkinson conceded this was, to some extent, supported by the medical report from the Coroner, it was unfairly prejudicial to admit this evidence as there was no basis to test it; even if it only be as to frequency, extent or even perhaps quantum.

197 This material relates specifically to a particular of the charge levelled against the defendant. If accepted, its probative weight is substantial, particularly when taken with some of the evidence found within the remainder of the deposition given before the Deputy Coroner on 12 June 2002. As Mr Hodgkinson properly conceded, it is to some extent corroborated by forensic evidence taken from the crash site. I refuse the defendant's objection.

198 This then brings me to the objections surrounding the admission of the remainder of the deposition (as disclosed in exhibit Y). I should note that a number of objections were taken to passages from the deposition on the basis of the "general objection" referred to above. As the defendant has failed on this ground, it is unnecessary to refer to the objections resting solely on the "general" basis for objection.

199 Turning firstly to the questions asked by Inspector Lund assisting the Coroner, and leaving aside the "formal matters" addressed by the witness on page 17 of the transcript (which the defendant said fell within its "general objections"), the relevant parts of the deposition were as follows: Q Now when you had that conversation with Darri and you indicated in your statement a sequence of events where he had been at home on the weekend, he left Sunday night to go to Brisbane to unload, how did you learn all that?

200 The defendant contended that this was a leading question and that its answer was of "no independent probative value". It was not readily discernable what conversation he was referring to - it is not identified and as such is not, of itself, capable of investigation. Moreover, the evidence was ambiguous. In addition, Mr Hodgkinson relied on the general submission that the witness was not now available to be cross-examined.

201 This evidence establishes a basis upon which the witness later gave evidence - namely that he had been "talking" with the deceased and had been informed of certain matters associated with movements of the truck. Even when taken in the artificially extracted form urged by the defendant, I am not satisfied that the evidence is irrelevant. Nor am I satisfied that the evidence is of little probative value. Whilst I accept that the lack of opportunity to cross-examine is a relevant factor in assessing the probative value of evidence, there is nothing in the evidence from which I can conclude that it warrants either the exercise of the discretion afforded by s135 of the Evidence Act or that its receipt would give rise to "unfair prejudice" such as to enliven s137 of that statute. The deposition continued: Q. Did he tell you that did he? A. Yes, yeah.

Q. And when did he tell you that? A. Monday morning I was talking to him. I knew he left Sunday night to go to Brisbane. I talked to him Monday morning in Brisbane and I was talking to him when he was going to Kempsey to load bricks and I talked to him - actually I rang - I was talking to him Tuesday to when he was in Nowra - oh actually he was at the top of Mount Ousley half past ten Tuesday night to go to Brisbane.

202 On the defendant's submission, this was "a wide ranging answer" - a "conglomeration of things" that was "not referable to any particular individual part of the transcript". Moreover, there was no support for the fact of a Monday morning telephone call - the fact asserted, being the position of Mr Haynes atop Mount Ousely was contradicted by the Safe-T-Cam evidence in exhibit 30, and it was second hand hearsay. In so far as the evidence contained the assertion that Mr McKellar "knew [the deceased] left Sunday night to go to Brisbane", that assertion was irrelevant as it was a representation of Mr McKellar and it was not based on admissible evidence. 203 This material relays various points at which Mr McKellar was said to have contacted the deceased. Extracting these observations in the artificial manner sought by the defendant again places the material in a particular light. I accept that the probative value of the evidence is lessened by the lack of opportunity to clarify the specifics of the conversation alleged and that the evidence was of a hearsay nature. However, I am not satisfied that the material is irrelevant, nor is it of such little probative value, when taken with the remainder of the McKellar transcript, as to warrant its discretionary exclusion, or exclusion on the basis of unfair prejudice. The defendant's objection is refused. Q. Now he indicated to you, did he, that he had - he was going to coca cola to load up -- A. Yeah Q. -- for a trip back to Sydney? A. Yeah.

Q. And in fact you talked for 20 minutes and he said he had no sleep at all that day and the night before? A. Well the Tuesday and Monday, yes.

204 On the defendant's submission, these questions were leading and the answers should be seen as of less probative value accordingly. Moreover, the purported conversation was in reference to a conversation identified in the McKellar statement. There was no corroboration that a telephone conversation took place at the time asserted. The assertion of a lack of sleep on the Monday and Tuesday is "unexplained and unexplainable by reference to the balance of the evidence". Moreover, it was hearsay, it did not comply with s 65 and cannot now be tested. I am not satisfied that this material is of no probative value. It gives evidence, broadly of a time and location. It may establish that the witness was told by the deceased that he had had no sleep on the Monday and Tuesday prior to the accident (which I note occurred on the Wednesday). Whilst it may well be seen of little probative weight by itself, I am not satisfied that it would result in unfair prejudice such as to require its exclusion or warrant its exclusion in the exercise of discretion.

A. Particularly oh well - I knew what Darri was like and what he did but he - there was one, one part of the statement he, he told me he was talking to himself. Like was tired and he had a big week the week before and the week before that, like what he actually done them weeks I, I know he worked hard but he was talking to himself and he asked me did I ever get in that situation and I said as a joke, "As long as you don't answer yourself back", or - we had them kind of jokes but - and I, and I wasn't working that week at the time and I said, because I knew he was tired, I said come by - because I was going to go down with him for a week and I said come by --

205 Mr Hodgkinson contended that this evidence consisted of representations of Mr McKellar and not that of Mr Haynes. In that regard, the fact the deceased was "talking to himself" did not appear in the earlier statement. This cannot be tested. Moreover, when compared with exhibit S, it would appear that Mr McKellar was in fact working at that time and was in Warwick and on his way to Toowoomba.

206 This passage discloses a representation that the deceased had made to Mr McKellar in a telephone conversation the two men had had some little time before the accident. It discloses the fact that the deceased was "talking to himself". It is a matter that may be of substantial probative value when assessed against other evidence demonstrating the symptoms of fatigue. In any event, I am not satisfied that the evidence is irrelevant. Nor am I satisfied that it would give rise to "unfair prejudice" or would warrant the exercise of discretion to exclude it from the proceedings. As a consequence, s 56 of the Evidence Act provides that it is admissible.

Q. Down, where's that? A. With him in the truck.

Q. Down to Sydney or -- A. Yeah and I said "come by Glen Innes", he said "No, I'm already at Ben Lea [Beenleigh]", I said "I'll pick you up on the way back" and oh no he's, he was tired and I said "Just go to bed" and he said "no I cant go to bed because Jim's going load me Coca-Cola back out of Sydney in the morning and I've got to me it", yeah and I said "well just go to bed". But Darri was a person that he was - the more you pushed him the more he'd just determined and he'll have to do it and I don't know its hard to explain it but. I don't blame Jim for what happened but Darri should have been in the situation well he could've went to be and stayed in bed and not be pressured if he did sleep, but you know what I mean? That's what I tried to get in him but Darri was being doing stock most of his life, he hadn't been doing much general, I've done twenty five years of general. I've worked for blokes like that, I know what its like, I've worked twenty hours a day. I've gone a week without sleep, you know but I don't do it anymore but I've been in that situation, you know, and I tried to help him but Darri, the person, you could tell him that - I just told him to go be and he was tired and he was, he was pressured and he was a hard worker but Jim just got the better of him. I'm not blaming Jim for - like Darri's a person you, you do what you're supposed to do but - I know.

207 Mr Hodgkinson contended that there was no telephone record to support this conversation, and again the assertion that Mr McKellar was seeking to join the deceased would appear contrary to the phone records in exhibit S. Moreover, the majority of the material contains Mr McKellar's opinion and views on certain matters - not representations of Mr Haynes. There is no basis provided for those views. On the defendant's submission, the material is irrelevant, or, in the alternative, of no probative value.

208 Insofar as the bolded section of the passage is concerned, the evidence of Mr McKellar is nothing more than a broad representation as to his experience and various other matters. I am satisfied that that evidence is of no probative value and should be excluded. As for the opening aspects of the passage, it indicates the direction the deceased was headed, why he was headed to that particular location and, broadly, when he was supposed to be there. The material is relevant to the issues in the proceedings and as such is prima facie admissible. Whilst I recognise that the observations are hearsay, there is no danger that the evidence may be "misused". Its ultimate significance will be a matter of weight. I am not satisfied that it creates unfair prejudice to the defendant or would otherwise warrant exclusion in the exercise of discretion.

Q. Now you say that you knew that Darri took amphetamines? A. Yeah, I did yeah.

Q. What do you mean by that actually, do you mean he took them for recreational purposes or -- A. No, no, no, no

Q. What do yo mean by that? A. To stay awake.

Q. What whilst he was driving his truck or driving the vehicle or what -- A. Driving the truck yeah. Well it's the hours you do, like the - from Brisbane, I've done it a thousand times. Wollongong to Brisbane is a thirteen hour drive, that driving time. A lot of companies loads you, unloads you, but you unload a general trailer and load it, that could take you five to six, seven hours. In you log book you put it you get to Brisbane at 7 o'clock in the morning, you don't leave till 7 o'clock at night, you've got a twelve hour break, but you're not break, you're loading unloading the trailer, so you're not getting any sleep. There are companies you go A to B, they load it for you, but there are companies that don't, and the amount of hours involved loading, could take two hours, could take you all day. So you don't sleep. You might get two hours of sleep and an hour for a shower and a feed and that it. That's not everyday, that's - there are times that happens and that situation, that was.

Q. So how long do you say Darri was taking amphetamines for, have you any idea? A. On that particular trip or --

Q. Yeah or anything at all, that particular trip of the trip before that or was it for the previous eight weeks or -- A. He has taken some yeah, mainly after he'd been awake for two or three days yeah.

Q. And did you say that you take them as well? A. Used to.

209 On the defendant's submission, there was no factual basis from which to establish the asserted knowledge. Moreover, much of the latter part of the extract was said to be evidence of Mr McKellar's experience in relation to others, not by reference to Mr Haynes. The fact that Mr McKellar took amphetamines was said to be irrelevant. Further, the "general" answer given does not permit identification of the time when Mr Haynes was said to have taken amphetamines as being within the period of employment with the defendant or more particular by reference to 1 September 1999.

210 Insofar as the bolded portion of the evidence is concerned I am satisfied that experience of Mr McKellar is irrelevant to the issues in these proceedings. As to the remainder of the evidence, I am satisfied that conversations between Mr McKellar and the deceased surrounding the use of amphetamines and the purpose behind the taking of amphetamines is relevant to the issues in this case. As noted earlier, there is corroborative evidence of amphetamine use. I am satisfied that there is nothing in the evidence that could constitute unfair prejudice or otherwise warrants the exercise of discretion to exclude it.

Q. and what does it do, what's the reaction when you take amphetamines? A. Each individual it works on different people I suppose but I don't know.

Q. Did Darri ever talk about it with you? A. Yeah we did yeah.

Q. And what did he say to you about it? A. Well it keeps you awake, it keeps you alert but over a period, and I know myself, I've, I went seven days running Perth without sleep --

Q. Sorry seven days? A. Running Perth with no --

Q. To Perth? A. -- with no sleep. I done that for five years.

Q. Without any sleep? A. No sleep no, and the amphetamines keep you to a certain limit where you stay awake but they'd, they'd - there is a limit where they don't do any good, but that up to the individual how far do you go?

211 This extract was said to be irrelevant or, in the alternative, of no probative value. None of the representations are those of Mr Haynes and he never undertook a trip to Perth whilst in the employ of the defendant. What Mr McKellar has done in the past is irrelevant.

212 Insofar as the evidence provided evidence of Mr Haynes and Mr McKellar having discussed the use of amphetamines, and Mr Haynes indicating his understanding of their operation, this evidence is clearly relevant and of probative value. I am not satisfied that any prejudice that may be imposed upon the defendant is such as to enliven s137 nor s135. I concur with the submissions of the defendant insofar as it was contended that the remaining evidence was irrelevant. The bolded area of the extract is excluded.

Q. So when you spoke to Darri, you tried to convince him to have a sleep -- A. Yeah.

Q. --is that the case on this particular evening? A. Yeah, yep.

Q. And what did he say about that? A. Well he couldn't because he said he was worried about Jim getting up him because Jim was - I don't even know Jim Hitchcock you know nut I know people like him and I've worked for people like him and to try and tell Darri just to go to bed, if you wake up you wake up, like the Coca-Colas are going to get put in the storage room, there's no hurry for it, you know, but Darri, Darri didn't know anything about that kind of stuff and the more you told Darri to do something, like he'd go, he'd work harder. Like Jim got up him or I got up him, he'd work harder just to prove a point, you know. He had a lot of pride and I think that pride just got him in trouble, you know, in my opinion.

213 On the defendant's submissions, this material contained no representation of Mr Haynes. Further, the attempts by Mr McKellar to have the deceased take a break to get some sleep, whilst apparently referable to 1 September 1999, did not appear in the earlier statement to police in Exhibit X. This cannot now be tested. Further, on Mr Hodgkinson's submission, observations as to Mr McKellar's experience with persons "like" the defendant are irrelevant or in the alternative of no probative value.

214 I agree with the defendant insofar as it was submitted that Mr McKellar's experience with people "like" the defendant are concerned. This evidence disclosed attempts by Mr McKellar to persuade Mr Haynes to take a rest. That a close friend was attempting to persuade the deceased Mr Haynes to take a rest a short time prior to the accident which ultimately gave rise to these proceedings, is of some, albeit little, probative value. It is not prejudicial in a relevant sense. With the exception of those areas marked in bold, the defendant's objection is overruled.

215 The following material was to be found in that part of the deposition in which then counsel for the defendant, Mr Moses, was asking questions of Mr McKellar. Q. And I think on the evening of this accident or the evening before at 11 o'clock you had telephoned Darri to speak to him and he was in Ballina at the time, is that right? A. Having a coffee yes [NOTE THIS IS AS CORRECTED BY EXHIBIT W]

Q. And so he had stopped at Ballina? A. Yes.

Q. Can you recall what he said to you at that time in that last telephone call you had with him, to the best of your recollection, I know its been some time so if you don't know the exact words, if you could just say what the general effect of the conversation was -- A. Well the honest truth, I couldn't get much sense out of Darri, you know.

Q. So what you can recall is that he had stoped at Ballina to have a cup of coffee? A. Yes.

Q. And he told you that he was coming home to Grafton? A. To have a shower and to see Vicky and to be in Sydney.

216 The conversation referred to in this material was said to be identified in exhibit X as having taken place at around 11 o'clock on 1 September. It was contended that there was no means of verifying that this conversation actually took place, or of testing what is said to have transpired. Moreover, it was submitted that this was inconsistent with other evidence demonstrating the location of the truck. Further, as to the assertion that Mr MacKellar could not get any sense out of Darri, this was not referred to in exhibit X. It is not supported by any other evidence, nor is it a contemporaneous record (having been led for the first time at the inquest). As such, the material has no probative value.

217 The relevant extract provided a location of the truck and the deceased at a time and place. It is corroborated by other evidence including the accident itself. It contains a description of the deceased's demeanour as perceived by Mr McKellar. It contains a statement of the deceased's intention. Whilst I recognise that the material is hearsay, it is relevant and of some probative value. It is not prejudicial in any relevant sense. I refuse the defendant's objection.

Q And I think the effect of your evidence is that Mr Haynes had told you that Mr Hitchcock was somebody who, no matter how hard he tried, he could please him, is that right? A. Mm-mm

Q. Something to that effect I think you said Mr Haynes said that -- A. Something -- yeah. 218 On the defendant's submission, the evidence in this question was in answer to a leading question and was non-responsive in any event. It has no probative value and is simply prejudicial. I agree that this material is of no probative value. It is, therefore, excluded as irrelevant.

Q. Do you recall yourself applying for a job at Hitchcocks -- A. Yes I did.

Q. Andy you were unsuccessful in that or you didn't get the job? A. I didn't, didn't bother.

Q. Didn't bother? A. Yeah. 219 On Mr Hodgkinson's submission, this material was irrelevant and in the alternative has no probative value. I can see no basis upon which this material should be excluded. The defendant's objection is refused.

Q. And with Mr Haynes, I think you've told the officer that he took amphetamines to stay awake, is that right? A. Mm-mm

Q. How do you know that he took amphetamines? A. How do I know?

Q. Yeah? A. I've seen him, been with him.

Q. Understand, okay, and apart from taking amphetamines, have you seen him take any other types of drugs? A. Nope.

Q. So no marijuana? A. No never touched it.

Q. And what, in your experience, if you go to paragraph 4 of your statement, do you have a copy with you? A. No

Q. I just want to ask you a question based on your experience, your long experience as a truck driver, something that you said in paragraph 4, I think you've said that you spoke to him about 8.30 on the Wednesday morning, which was the day prior to the accident and at that stage did he tell you where he was at that time on Wednesday morning? A. I'm pretty sure he was at the time - where he's unloading - he loaded out of Bomaderry, yeah --

Q. At Bomaderry? A. Yeah with a load, he loaded out of Bomaderry, he was loading in Brisbane, whereabouts I don't know.

Q. I'm just trying to get what you say in your statement, so from 8.30am to 4pm he was loading the Coca-Cola? A. No he was unloading his load be brought up from - Wollongong at 8.30

Q. So he told you he was going to load at Coca-Cola for Sydney? A. Yeah.

Q. And he didn't leave Coca-Cola until 4pm? A. Between 3.30 and 4pm he left. 220 On the defendant's submission, there is nothing associated with the assertions of drug taking that could permit a conclusion that it occurred whilst in the employ of the defendant, at or around 1 September 1999, or indeed at any time during the 30 year friendship of the two men. Significantly, the evidence demonstrates that Mr McKellar was not with Mr Hayes on 1 September or in the days immediately preceding it. The observation could not be relevant to that period.

221 The evidence of amphetamine use is clearly relevant to the issues in these proceedings. This material is of significant probative value and, as noted with earlier evidence as to amphetamine use, is corroborated to some extent by evidence from the crash site. It is not prejudicial in a relevant sense. I refuse the defendants objection in that regard.

222 As to the alleged telephone conversation, it was submitted that the only relevant telephone conversation to which it could be identified in exhibit X as having occurred at 8.30am on the Wednesday morning. If it were any other conversation then its probative value would be significantly diminished. Further, if it were identified as that conversation, it is contrary to the evidence in exhibit 30. The evidence has no probative value and is excluded accordingly.

223 As noted when dealing with the paragraphs of the statement to which this cross-examination related, the evidence of Mr McKellar in this passage, whilst providing a location of the deceased at various times, is ambiguous. I agree with the defendant that its reliability is such as to render it of little probative value. With the exception of the final questions and answer, I consider that the material should be excluded. - Q. Just on the trip that Mr Haynes was on that you refer to in paragraph 4, did it strike you as unusual that for the trip that he said he was doing, that he would have no sleep all of the day of 1 September and the day before it, that there would be a need for him to be on the road and not get any sleep in effect for two days on the trip that he was doing, in your experience as a driver? A. Yeah well I, I explained, he unloaded Monday morning, that could take half an hour, I don't determine that could take five hours where he unloaded.

Q. Okay so there's probably in terms of queuing up, as it were? A. Queuing up, yeah. Who they unload - like I've spent all day unloading places but as that time with Darri, I don't know you could unload in half an hour, I don't know but all I knew he was - had to be in Kempsey that afternoon to load bricks, and what time he got out of Kempsey I don't know.

Q. so it depends on, as it were, what's actually happening during the loading and unloading stage? A. Yeah, how many trucks are there, if there's five trucks in front of you, that could take six hours.

Q. But certainly, in your experience as a driver -- A. My experience, yeah, yeah

Q. -- it wouldn't take, as it were, a day or two days to do that amount of kilometres involved in a trip that Darri told you he was doing on those two days? A. Kilometres wise?

Q. Yeah? A. No, but to load and then unloading them, yes. Q. And when you say load and unload, the drivers are not physically loading and unloading are they, that is that they themselves -- A. A fork - or you cant lift a tonne up, a pallet up, the fork lift put it on but your responsibility is as a professional driver is to secure it, tie it and tarp it or whatever you've got to do to it, you know. 224 On the defendant's submission, this material constitutes general assertions as to Mr McKellar's experience. They are not representations of Mr Haynes, they are not referable to the experience of Mr Haynes and have no probative value.

225 This material provides evidence of the opinion of a truck driver of some considerable experience, about the length of time that it would take to do a particular journey and the factors which could affect such an estimate of time. It is clearly of some probative value when measured against the charges alleged. It is not material from which the defendant would suffer unfair prejudice. I refuse the defendant's objection.

Q. But certainly in your experience, in terms of the kilometres to be done on such a trip, would not take, as it were, two days of continuous driving without sleep? A. No. No. 226 This evidence was said to be ambiguous in that it was not referable to any particular trip or group of trips - in any event it would indicate that the relevant trip would take less than two days of continuous driving without sleep. It was of no probative value on the defendant's submission.

227 Again, this is an expression of opinion of an experienced truck driver. Having regard to the charges as particularised, it is relevant and of some probative value. Whilst its weight is a matter that will ultimately be taken into account at a later stage, there is nothing in the evidence that would warrant its exclusion from the proceedings. It does not cause the defendant unfair prejudice, nor do I consider it warrants the exercise of discretion to exclude it.

228 I confirm my ruling of 2 July 2003. I note that at the conclusion of the proceedings the prosecutor undertook to provide an edited copy of exhibits Y and Z. Those edited copies have been received and will be marked as an exhibit (subject to the defendant confirming that the draft reflects my decision in relation to their objections).

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