Q. And are you saying that what is contained in that statement you made it up?
A. Not all of it, just when I met [SS] and we talked about it like when I first, basically it is pretty much after I went to [SS's] house. I didn't make that up, just, wasn't really from [SS] just what other people told me, but still stories from other people."
9 At that point the jury retired. Evidence was then taken on the Voir Dire. Mr Shahidi's attention was drawn to his account of his conversation with SS. He said this: (T 356)
"Q. Just so that it's clear, you say that's not what [SS] said?
A. No, that's what other people told me but I said in the statement that's what [SS] said."
10 When taken to each page of the statement, Mr Shahidi acknowledged it was accurate, apart from paragraph [13], which incorporated what others had told him, not SS (T 357-359). His evidence included the following: (T 359)
"Q. All right, and, is the whole of 13 or only part of it untrue?
A. Yeah it is just what other people told me, not [SS]."
11 The Crown, in these circumstances, sought leave to cross examine Mr Shahidi under s 38 of the Evidence Act 1995, as an unfavourable witness. Mr Austin of counsel, for SS, acknowledged that Mr Shahidi was unfavourable and that the trigger for s 38(1) had been satisfied (T 360). He submitted, however, that in circumstances where the witness had withdrawn the suggestion that SS had made admissions, his account in his statement of 4 January 2008 had "no weight". He asked that it be excluded as a matter of discretion under s 137 of the Act. Attention was drawn to Lee v The Queen [1998] HCA 60; (1998) 195 CLR 594, and especially paragraphs [25] and [41]. Having resiled from his police statement, Mr Shahidi's assertions in that statement, according to counsel, went only to his credit. He submitted that the following words of the High Court in Lee v The Queen had direct application:
"41. Evidence of Mr Calin's prior statements of what the appellant had said should not have been admitted as evidence of the truth of the confession allegedly made by him to Mr Calin. Because those prior statements of what the appellant had said went only to Mr Calin's credit, the trial judge could either have rejected those parts of the statements (s 137) or, if that course was not followed, would have had to give clear directions to the jury about the very limited use to which they could be put. In the circumstances of this case, the former course was to be preferred ."
(emphasis added)
12 However, there are, I believe, important differences between the facts in this case and Lee v The Queen. In Lee the prosecution witness, Calin, gave a police statement which he signed. It included a conversation with Lee where Lee was alleged to have said to him these words:
"6. '4 ... leave me alone, cause I'm running because I fired two shots.' I said, 'What do you mean you fired two shots.' He said, 'I did a job and the other guy was with me bailed out.'"
13 When he was called by the Crown during the trial, Calin said that, apart from pressing Lee to repay money owing to him, he could not recall any other conversation. His attention was drawn to the statement, which he denied making. The High Court noted the following:
"9. ... Trial counsel contended that although Mr Calin had signed the document he was affected by alcohol at the time, he had not read it or understood it and he signed it simply to be able to leave the police station. ..."
14 The Court added:
"11. The prosecution then cross-examined Mr Calin in front of the jury. Mr Calin admitted signing the document that had been prepared by the police but denied that the statements in it were his. The police officer who prepared the written statement gave evidence of the taking of the statement. Another officer deposed to Mr Calin having made a similar oral statement to him. The written statement that Mr Calin had signed was tendered in evidence."
15 In the context of that case, the need for the prosecution to prove Calin's statements added another layer in terms of the representations relied upon by the Crown. That created difficulties in respect of the hearsay rule and the requirement that admissions be first hand (s 82 Evidence Act). Here, however, there were no such difficulties. Mr Shahidi acknowledged that he made the police statement. He agreed that, on 4 January 2008, he told the police, amongst other things, that SS had said to him: "We didn't mean to kill him, we just wanted to hurt him but it got out of hand, I just hit him in the legs." The Crown asserted, in these circumstances, that the following statement by the Court in Lee, which was in parenthesis, had application:
"29. ... (Of course, it would be different if Mr Calin had said in evidence in court that the appellant had said he had done a job. Then the representation made out of court would be the appellant's, not Mr Calin's.)"
16 In the course of argument, counsel for SS ultimately did not oppose the Crown cross examining Mr Shahidi on the Voir Dire in the absence of the jury (T 364). He submitted that if, through cross examination, the witness capitulated and acknowledged that SS had made the admissions attributed to him in his police statement, the evidence could then be given in front of the jury. If he did not then, according to counsel for SS, the problem raised by Lee v The Queen would remain. In accordance with the High Court's judgment, the statements he made to the police, inconsistent with his testimony, would go only to Mr Shahidi's credit. For the reasons given in Lee v The Queen, the statements should be excluded as unfairly prejudicial (s 137).
17 Having heard argument, I made a number of rulings: (T 370)
First, that the Crown should have leave to cross examine Mr Shahidi on terms which were defined.
Secondly, that the cross examination should take place in the presence of the jury.
18 So far as the first aspect is concerned, there was, as mentioned, no contest. The issues under s 38(1) and s 192(2) of the Evidence Act were canvassed (T 360-362). In respect of the second matter, the ultimate issue for the jury will be whether they accept SS told Mr Shahidi:
"We didn't mean to kill him, we just wanted to hurt him but it got out of hand, I just hit him in the legs, I was screaming to the other guys, 'Don't hit him in the head'" (supra para [4])