Ku-ring-gai Council v John David Chia

Is the record inadmissible by reason of s 122U?

1. Section 122U(3) of the EPA Act relevantly provides that where an objection is taken, "any information furnished or answer given by a natural person in compliance with a requirement under this Division is not admissible in evidence against the person in criminal proceedings" (emphasis added). This wording would tend to suggest that the prosecutor rather than the defendant is precluded from admitting the evidence.
2. It is notable in that regard that the provision provides that any information obtained in a compulsory interview is not admissible in "evidence against the person" as opposed to providing that the evidence is inadmissible in evidence in "proceedings commenced against the person", or some other formulation.
3. Therefore, on its plain words, I find that s 122U(3) of the EPA Act does not prevent the defendant from adducing his own compulsorily acquired interview by reason of his objection (although he is doing so in the prosecutor's case).
4. This conclusion also accords with a purposive interpretation of s 122U(3) of the EPA Act which was presumably enacted to protect a person required to answer questions by law from self-incrimination. It can hardly be supposed that such a person, properly advised, would seek to adduce the evidence in his or her own case (or indeed in the prosecutor's case but of his or her own volition) if it was self-incriminating in the sense protected against by s 122U(3).
5. Accordingly, I do not find that s 122U of the EPA Act is a complete answer to the question of admissibility in the present circumstances and proceed to consider the other matters raised by the parties.

Does the record of interview contain admissions?

1. The defendant submits that the record of interview contains a number of "admissions", which as defined by the Evidence Act comprise previous representations adverse to his interest in the outcome of the proceeding. The defendant's alleged admissions are as follows: 1. That he was the owner of the property at 53 Carnarvon Road, Roseville; 2. That he agreed that a map provided to him by Ms Miller and Mr McCormack accurately depicted the boundaries of the property; 3. That he engaged Craig Edgar to undertake work on the land; 4. That he engaged James McKenzie to undertake work on the land; 5. That he entered onto land owned by the prosecutor and land owned by Roseville Golf Club; 6. That his solicitor was authorised as his agent and that he spoke to Mr Edgar; and 7. That he had an agreement to maintain land owned by the Roseville Golf Club within 35 metres of his own property. The defendant specified the identity of the people with whom he formed this agreement to the best of his recollection.
2. There is no doubt that the statements made by the defendant constitute "previous representations". The question is whether these matters, arising in a record of interview in which the defendant gives an exculpatory account of conduct which otherwise may amount to the commission of the offence with which he is now charged, constitute representations "adverse to [his] interest in the outcome of the proceeding". The prosecutor submitted that the record of interview should rather be classified as "self-serving".
3. Mr Steirn submitted that certain answers made by the defendant during his interview could be classified as admissions because they provided information to the prosecutor in respect of which it was then able to carry out investigations. For example, in respect of the conversation or agreement with representatives from the Roseville Golf Club, Mr Steirn submitted "the point about that is it's an admission as to who he says he spoke to which allows the council through its investigators to check that story" (at Tcpt, 2 November, p 997(12-14)).
4. Whilst I harboured some concern as to whether the matters raised by the defendant and noted at [27] above constitute admissions given that they were put in the overall context of an exculpatory account, I have decided that the better view is that they do constitute admissions within the definition of that term in the Evidence Act.
5. Taken in isolation, the fact that the defendant was the owner of the property and that he gave instructions to Mr Edgar may seem matters of relatively minor consequence but they are matters which the prosecutor would otherwise have been obliged to prove. In that regard, I consider that it is of some consequence that the interview was obtained compulsorily under the EPA Act which represents an abrogation of the right to silence the defendant would have otherwise had at common law.

Should the entirety of the record of interview be adduced pursuant to s 81?

1. Admissions constitute an exception to the hearsay rule pursuant to s 81 of the Evidence Act, as do previous representations "to which it is reasonably necessary to refer in order to understand the admission[s]".
2. The extension of the exception provided by s 81(1) to previous representations necessary to understand the admissions in s 81(2) was presumably provided for in the Evidence Act to protect against the selective tendering of evidence warned against by Hayne J in Mahmood v The State of Western Australia (2008) 232 CLR 397; [2008] HCA 1 at [39]: In general, the prosecution should call "[a]ll available witnesses … whose evidence is necessary to unfold the narrative and give a complete account of the events upon which the prosecution is based". If an accused has made inculpatory statements that are admissible in evidence, the prosecution should ordinarily lead evidence of all of those statements. It is necessary, of course, to take account of statutory provisions governing admissibility of out-of-court admissions that are not recorded. But subject to that important consideration, it is not open to the prosecution to pick and choose between those statements, whether according to what is forensically convenient or on some other basis. And in leading evidence of out-of-court assertions which the prosecution alleges are inculpatory, the prosecution must take the out-of-court assertion as a whole; the prosecution "cannot select a fragment and say it bears out their case, and reject all the rest that makes against their case" (citations omitted).
3. It would not be open to the prosecutor, and I note that the prosecutor properly does not attempt, to admit any "inculpatory" comments from the record of interview as admissions and exclude any exculpatory comments as hearsay. Therefore, the entirety of the record of interview ought to be admitted into evidence under s 81.

Does the record of interview fall within one of the hearsay exceptions provided for by s 60?

1. Had I been of the view that the matters raised by the defendant (as noted at [27] above) were not properly classified as admissions, I would nevertheless have been of the view that the record of interview should be admitted under s 60(1) on the grounds that it is admissible as evidence of the conversation rather than as evidence of the asserted facts contained within it.
2. This course was not opposed by the prosecutor, though I note that given that s 60(3) provides that s 60(1) has no application in relation to admissions, this method of adducing the record of interview into evidence could only have been in the alternative to s 81.

Should the Court receive the record of interview for a limited purpose under s 136?

1. Under the common law, where evidence which would otherwise have been inadmissible as hearsay was adduced for a non-hearsay purpose, it could only be used for the non-hearsay purpose. Section 60 of the Evidence Act reverses the common law position.
2. In its "Evidence - Interim Report" ([1985] ALRC 26), the Australian Law Reform Commission explained the change to the common law position in the following terms (see also Stephen Odgers, Uniform Evidence Law (13th ed, Thomson Reuters, 2018) at 388-9): Under existing law hearsay evidence that is admissible for a non-hearsay purpose is not excluded, but may not be used by the court as evidence of the facts stated. This involves the drawing of unrealistic distinctions. The issue is resolved by defining the hearsay rule as preventing the admissibility of hearsay evidence where it is relevant by reason only that it would affect the court's assessment of the facts intended to be asserted. This would have the effect that evidence relevant for a non-hearsay purpose - eg to prove a prior consistent or inconsistent statement, or to prove the basis of the expert's opinion - will be admissible also of evidence of the facts stated…
3. Section 136 gives the Court the discretion, in effect, to revert to the common law position by admitting evidence only for a limited purpose. As noted above, the prosecutor submitted that the Court should exercise its discretion under s 136 to admit the record of interview only for its non-hearsay purpose.
4. I have determined that it is not appropriate for the Court to admit the evidence on a limited basis only and therefore decline to exercise my discretion under s 136. My reasons may be shortly stated.
5. First, I note that the common law position has no application in relation to evidence admitted under s 81 (as opposed to s 60) as admissions have not been adduced on the basis of their relevance to some other matter but rather as discrete exceptions to the hearsay rule. This is not, in itself, a determinative consideration but it would be curious to allow admissions (as opposed to other hearsay) into evidence as proof that they had been made and not as proof of the matters admitted.
6. Secondly, I have had regard to the comments of Grove J, with whom Barr and Latham JJ agreed, in R v Rymer (2005) 156 A Crim R 84; [2005] NSWCCA 310 ('Rymer') at [36]-[38]: [36] The present case deals with statements which can be classified as wholly exculpatory. Such relevant doctrine as can be discerned can be traced to origins in the divorce proceedings of Queen Caroline (The Queen's Case (1820) 129 ER 976; 2 Brod & Bing 284) where the advice of the House of Lords was that a statement of mixed matters, some self serving and some against interest, must be placed in whole before the tribunal of fact. [37] The Crown Prosecutor accepted this rule in the case of "mixed" material but contended that, while admissions as statements against interest are admissible at common law (and s 81) based upon the rationale that such are generally truthful, the converse does not apply to self serving statements. [38] That contention should be viewed in the light of the opinion of Kirby P in R v Astill (1992) 63 A Crim R 148 at 156 who, after citing Lord Wilberforce in Ratten v The Queen [1972] AC 378 when his Lordship referred to the distinction between the fact of words spoken and the question of hearsay arising if such fact is to be used "testimonially", said: "There is a further basis upon which such evidence may be received. It is where the assertion is so apparently spontaneous as to lend weight to the conclusion that it was not concocted or self-serving. This feature may then permit the reception of the evidence even over objection. The theoretical basis for doing so is, as Dixon J explained in Adelaide Chemical & Fertilizer Co Ltd v Carlyle (1940) 64 CLR 514 at 532f: '…reliance on the greater trustworthiness of statements made at once and without reflection…' The fundamental basis for the disinclination of judges to exclude such evidence was explained by Lord Wilberforce in Ratten (at 389f): 'The possibility of concoction, or fabrication, where it exists, is on the other hand an entirely valid reason for exclusion, and is probably the real test which judges in fact apply. In their Lordships' opinion this should be recognised and applied directly as the relevant test: the test should be not the uncertain one whether the making of the statement was in some sense part of the event or transaction … As regards statements made after the event it must be for the judge, by preliminary ruling, to satisfy himself that the statement was so clearly made in circumstances of spontaneity or involvement in the event that the possibility of concoction can be disregarded … "And later (at 391): 'These authorities show that there is ample support for the principle that hearsay evidence may be admitted if the statement providing it is made in such conditions (always being those of approximate but not exact contemporaneity) of involvement or pressure as to exclude the possibility of concoction or distortion to the advantage of the maker or the disadvantage of the accused.
7. If spontaneous statements are at one end of the spectrum of reliability, then contrived, prepared statements are at the other end. A statement of the latter kind was considered by Bellew J in R v Ronald Edward Medich (No. 20) [2017] NSWSC 186 ('Medich'). His Honour characterised the statement under consideration in that case (which he determined ultimately to exclude from evidence under s 135(a) of the Evidence Act) in the following terms at [39]: The statement made by the present accused at the conclusion of his committal hearing, unlike that of the accused in Rymer, was not in the nature of a spontaneous denial in made in response to being initially confronted with an allegation of murder. Rather, it was a prepared statement, in the nature of a contrived denial of the kind to which Grove J referred. The differing circumstances between Rymer and the present case are such that, in my view, there is no warrant to require the Crown to put the accused's statement before the jury.
8. I consider that the present record of interview can neither be characterised as "spontaneous" nor "contrived". It lies somewhere on the spectrum of reliability between Rymer and Medich. That being the case, I consider that there is less prejudice to the prosecutor in the admission of the evidence without a s 136 restriction than might otherwise be the case. Nor do I consider that its admission into evidence would be "misleading or confusing".
9. Thirdly, the fact that the defendant was under an obligation pursuant to s 122T(2) of the EPA Act not to provide any answers which he knew were "false or misleading in a material respect" is a matter which would tend to weigh in favour of the reliability of his answers in the sense referred to in Rymer.
10. Fourthly, whilst the prosecutor submitted that it was prejudiced by the inability to cross-examine the defendant as to the matters recorded in the interview, I consider that a matter which goes to the weight to which I afford the evidence in due course rather than to its admissibility.
11. Fifthly, and to some extent similarly, in admitting the record of interview on an unlimited basis, I am not determining its probative value in relation to any particular purpose. That is a matter upon which I will hear submissions in due course.
12. Sixthly, I consider that there is a more limited role for s 136 to play in proceedings where there is no jury. I note the comments of Sackville J in Seven Network Ltd v News Ltd (No 8) (2005) 224 ALR 317; [2005] FCA 1348 at [21]: I agree… that the policy apparently underlining provisions such as ss 60 and 77 of the Evidence Act should not be undercut by the making of orders under s 136 as a matter of course. This is particularly so where a judge, rather than a jury, is the trier of fact, since the danger of unfairness to a party might be expected to be mitigated by the judge attributing less weight to material that cannot adequately be tested in cross-examination. Even so, the circumstances may be such that the power conferred by s 136 will not only be enlivened but it will be appropriate for the Court to make a direction limiting the use of otherwise admissible evidence.
13. In Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37, McHugh J at [94] cautioned against over-reliance on s 136 even in the context of jury trials: As Hunt CJ at CL and Bruce J pointed out in R v BD, it is artificial and wrong to admit evidence pursuant to s 66(2) and then limit the use of the evidence to credibility issues by exercising the power conferred by s 136. In the ordinary case, a warning under s 165 should be sufficient to alert the jury to the dangers of hearsay evidence. For that reason, s 136 should only be invoked in cases where the danger could not be cured by such a warning. No doubt the judge is more likely to limit the evidence to credibility issues when it has been admitted by way of s 108(3)(b) rather than by way of an exception to the hearsay rule. It is a sine qua non for admission via s 108(3)(b) that it is only relevant to credibility - s 102 of the Act. Nevertheless, directions under s 136 should not be made as a matter of course (emphasis added, citations omitted).
14. In the circumstances, I do not consider that there is such significant prejudice to the prosecutor or risk of the evidence being misleading or confusing to warrant making an order under s 136.
15. For those reasons, I have determined to allow the record of interview into evidence under s 81 of the Evidence Act and not to exercise my discretion under s 136 of the Evidence Act.

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