On 14 August 2020, I delivered a judgment making various evidentiary rulings in the case of Jacob Bayliss, who is on trial with five co-accused: R v Al Batat & Ors (No 3) [2020] NSWSC 1061. On 22 September 2020, I made a ruling excluding certain questions and answers in a recorded interview between Mr Bayliss and investigators dated 24 October 2017. [1] I indicated I would give reasons for that ruling as soon as possible and these are those reasons.
This judgment should be read in conjunction with the earlier judgment in R v Al Batat & Ors (No 3). The earlier judgment dealt with a number of diverse objections made on Mr Bayliss's behalf. Relevant to the present decision were orders 1, 2, 7 and 8 which were as follows:
(1) The evidence establishing that Mr Bayliss was in possession of about 42 grams of methylamphetamine on 2 February 2017 is admissible.
(2) All other evidence arising out of his arrest on 2 February 2017 is inadmissible.
…
(7) Subject to outstanding disputes regarding particular questions and answers, the electronically recorded interview dated 24 October 2017 is admissible.
(8) I direct the parties to liaise with each other to determine, consistent with the contents of this judgment, whether there are any residual issues to be determined as to those parts of the electronically recorded interview to be tendered before the jury.
Consistent with order (8), the electronically recorded interview has been edited by agreement and in accordance with the various rulings made. The only outstanding issue concerns the following questions and answers:
"Q427 Ah, do you agree that police removed some plastic bags from the vehicle, that contained drugs?
A No idea.
Q428 I'm not as, ah, do you agree, did you see that happen?
A Oh, fuck, I can't remember.
…
Q562 OK. And so when the police officer said to you that he's found, showed you what he found in the car, you said, you said he held it up.
A Mmm.
Q563 Yep. Had you seen that before?
A Nuh.
…
PLAIN CLOTHES SENIOR CONSTABLE CHIVERS
Q589 …..uh, so this is a, just a general view of the front passenger's side door looking into the vehicle of the Hyundai. Um - - -
A Yeah.
Q590 [12:37] - - - can you see the, just draw your attention to those, so there's a newspaper - - -
A Yeah.
Q591 - - -and then just, there's a[n] object appearing.
A That, is that the bag of the drugs? That wasn't there when I was sitting there.
Q592 Yep. OK. No worries. I'll just get you to sign that to say that's the photograph I've shown ya.
A Yeah.
Q593 L. M. So this is just now a close-up of that area.
A Oh, see, he's pulled it out. Is that where it was stashed?
Q594 My understanding from speaking with a colleague is he's felt something in there - - -
A And he's pulled it out a bit.
Q595 - - - it's come out a little bit, he's sort of seen what it is, and that's when he started taking photographs.
A Oh, yeah, yeah.
DETECTIVE SENIOR CONSTABLE ROBERTS
Q596 Yeah, so that, that, how it is now, Jacob, we're not saying that you were sitting in the car - - -
A Yeah, nuh.
Q597 - - - and that's just sitting there.
A 'Cause I would've, I would've seen that ….. what the fuck is in there?
Q598 Yeah. Yeah - - -
A Yeah.
Q599 - - - we're not saying that it was just sitting there. I think, uh, as, as, um, Niall said - - -
A Yeah, yeah.
Q600 [12:39] - - - they're searching it and they've stopped once they've found it and taken a photograph of it in situ. Right? And that's what we're showing you now, you know.
A Yeah.
PLAIN CLOTHES SENIOR CONSTABLE CHIVERS
Q601 But this is just sort of to show where it was in the car, so it was inside.
A So the seat's here, eh.
Q602 Yeah. So we'll go back to, so it's, you've got the centre console area.
A Yeah, yeah. Yeah, yeah. Yeah.
Q603 You've got this plastic trim.
A Yeah.
Q604 And the footwell. So, up on the passenger side footwell and centre console trim was this object.
A Yeah.
Q605 Do you want to make any comment on that, that photo?
A Nuh.
Q606 Nuh. I'll just get a signature there, man. That's M. Uh, so this is a bit of a blurry shot, but this is the, still the passenger side footwell - - -
A Yeah.
Q607 - - - and the centre console. And now it's a, um, just a black plastic, do you recognise that item?
A Nuh. What is it?
Q608 I'll get you to sign that one and I'll show you the next one. Thanks ….. all right. So the first, so that's N. So the first photograph that I showed you, where you could see the bit of the plastic coming out of the, the area, so that's what that was.
A Holy Shit."
There is no dispute that these questions and answers relate to the seizure of the 42 grams of methylamphetamine on 2 February 2017, the subject of order (2). There is also no issue that Mr Bayliss's answers were false. The parties agree that Mr Bayliss pleaded guilty to charges by which he acknowledged (knowingly) being in possession of those drugs. The parties intend there to be an agreed fact that Mr Bayliss was in possession of the drugs. [2] Accordingly, his denials of his knowledge of the drugs and various answers prevaricating around that issue are, at least arguably, dishonest.
In other parts of the same interview, Mr Bayliss denied supplying the firearms which are the subject of counts 2 and 3 on the indictment presently before the jury. The prosecution submits that the false denial of knowledge of the methylamphetamine "goes to his credit in the interview". [3] The way in which the evidence is to be used was explained in the following exchange:
"HIS HONOUR: Can I be clear, the logic you are going to the jury with is he lied about the drugs?
CROWN PROSECUTOR: Yes.
HIS HONOUR: Therefore it is more likely he lied about the firearms?
CROWN PROSECUTOR: No, therefore in assessing his credit when he denies having supplied the firearms in the same interview, they can take into account the earlier lies." [4]
At one stage counsel for Mr Bayliss suggested that the evidence of the questions and answers was already subject to an order excluding it because of the broad terms of order (2) (set out above). [5] However, that submission did not appear to be pressed and was contrary to the terms of orders (7) and (8).
The initial argument on the issue was devoid of reference to the relevant provisions of the Evidence Act 1995 (NSW). [6] The argument was adjourned overnight and the following day the barristers were asked to address submissions to Part 3.7 and specifically ss 108A and 108B of the Evidence Act. [7] The decision of the Court of Criminal Appeal in Azzi v R [2013] NSWCCA 249 was also brought to the parties' attention.
Part 3.7 of the Evidence Act relates to the "credibility rule" and Division 3 (comprised of ss 108A and 108B) concerns "the credibility of persons who are not witnesses". Those sections are in the following terms:
108A Admissibility of evidence of credibility of person who has made a previous representation
(1) If--
(a) evidence of a previous representation has been admitted in a proceeding, and
(b) the person who made the representation has not been called, and will not be called, to give evidence in the proceeding,
credibility evidence about the person who made the representation is not admissible unless the evidence could substantially affect the assessment of the person's credibility.
(2) Without limiting the matters to which the court may have regard for the purposes of subsection (1), it is to have regard to--
(a) whether the evidence tends to prove that the person who made the representation knowingly or recklessly made a false representation when the person was under an obligation to tell the truth, and
(b) the period that elapsed between the doing of the acts or the occurrence of the events to which the representation related and the making of the representation.
108B Further protections: previous representations of an accused who is not a witness
(1) This section applies only in a criminal proceeding and so applies in addition to section 108A.
(2) If the person referred to in that section is a defendant, the credibility evidence is not admissible unless the court gives leave.
(3) Despite subsection (2), leave is not required if the evidence is about whether the defendant--
(a) is biased or has a motive to be untruthful, or
(b) is, or was, unable to be aware of or recall matters to which his or her previous representation relates, or
(c) has made a prior inconsistent statement.
(4) The prosecution must not be given leave under subsection (2) unless evidence adduced by the defendant has been admitted that--
(a) tends to prove that a witness called by the prosecution has a tendency to be untruthful, and
(b) is relevant solely or mainly to the witness's credibility.
(5) A reference in subsection (4) to evidence does not include a reference to evidence of conduct in relation to--
(a) the events in relation to which the defendant is being prosecuted, or
(b) the investigation of the offence for which the defendant is being prosecuted.
(6) Another defendant must not be given leave under subsection (2) unless the previous representation of the defendant that has been admitted includes evidence adverse to the defendant seeking leave.
As can be seen, s 108A provides the admissibility requirements generally in relation to credibility evidence tendered in relation to a person who is not a witness. Section 108B provides a "further protection" for accused persons by requiring the prosecution to obtain leave unless the matters in sub-s (3) are established. If leave is not required, admissibility is determined by reference to s 108A and other provisions of the Evidence Act, such as ss 101 (tendency and coincidence), 110 (character evidence) and 137 (the danger of unfair prejudice).
Credibility evidence is defined in s 101A of the Evidence Act:
Credibility evidence, in relation to a witness or other person, is evidence relevant to the credibility of the witness or person that--
(a) is relevant only because it affects the assessment of the credibility of the witness or person, or
(b) is relevant--
(i) because it affects the assessment of the credibility of the witness or person, and
(ii) for some other purpose for which it is not admissible, or cannot be used, because of a provision of Parts 3.2 to 3.6
The Prosecutor does not take issue with the fact that the evidence is credibility evidence. That is, its only relevance lies in its capacity to affect Mr Bayliss's credibility. Initially, the Prosecutor took the approach that he required leave under s 108B(2). [8] However, ultimately it was submitted that the evidence constituted a "prior inconsistent statement" pursuant to s 108B(3)(c) and that leave was not required. [9] It was submitted, at least implicitly, that the evidence could "substantially affect" the jury's assessment of Mr Bayliss's credibility.
Counsel for Mr Bayliss submitted that the evidence should be excluded under s 137 of the Evidence Act. No submissions were directed to ss 108A or 108B but a passage in Mr Odger's textbook was referred to in which the learned author questioned the reasoning in the case of Azzi v R. [10]
On a technical approach, the provision in s 108A is not satisfied because, at this point of the trial, "evidence of a previous representation" has not been admitted. However, there is no dispute that the prosecution will tender evidence of an admission by Mr Bayliss that he was in possession of the methylamphetamine on 2 February 2017. Accordingly, this ruling can be considered to be an "advance ruling" under s 192A of the Evidence Act.
The provisions in ss 108A and 108B were considered by the Court of Criminal Appeal in Azzi v R. The issue was somewhat complicated or obscured by the fact that the prosecution sought to rely on the relevant evidence as "coincidence evidence" and the parties did not address submissions to the trial judge on the provisions of ss 101-108B. Azzi v R concerned an appellant who was convicted of drug supply. He was arrested in possession of a number of different drugs. He was convicted of the supply of heroin (that is, deemed supply of 16.4 grams of that drug) contrary to ss 25(1) and 29 of the Drug Misuse and Trafficking Act 1985 (NSW). Other drugs were also found in his possession. This included a "white crystalline substance" (methylamphetamine) which the applicant told police was "probably sugar". He pleaded guilty and was fined in the Local Court for possession of the methylamphetamine (and other drugs). At trial, the applicant denied possession (or knowledge) of the heroin and the Prosecutor relied on coincidence evidence in the form of the possession of the other drugs to prove the improbability of Mr Azzi not also being in possession of the heroin. The coincidence notice included reference to the false account that the methylamphetamine was probably sugar.
Fullerton J (with whom Beazley P and Hidden J agreed) held that the evidence of the "sugar lie" was wrongly admitted as coincidence evidence but that no miscarriage of justice was occasioned because the evidence was admissible as credibility evidence. Her Honour held at [50]-[51]:
"[50] In my view, the sugar lie is the evidence 'about whether the accused made a prior inconsistent statement' (namely his denial that he was in possession of the heroin) as provided for in s 108B(3)(c) and for that reason leave was not required for the admission of the evidence.
[51] In the result, I am satisfied that the sugar lie was properly admitted as credibility evidence and available to be used by the jury to assess the credibility of the appellant's denials to police that he was in knowing possession of the heroin."
Fullerton J also held at [47] that the evidence was "capable of substantially effecting the jury's assessment of the appellant's credibility generally and, in particular, the weight which might be given to his denial that he was in possession of the heroin".
In the present case, based on the binding analysis of the Court of Criminal Appeal in Azzi v R, I accept that the Prosecutor does not need leave under s 108B(2) because the evidence constitutes evidence of a prior inconsistent statement under s 108B(3)(c). If that is correct, the provision in sub-s (4) has no application. If it is not correct, and leave is required, leave could not be granted because neither of the criteria in sub-s (4) is satisfied. I will proceed on the basis that Azzi v R is correctly decided and there is no requirement for leave.
The first question then is whether the evidence "could substantially affect" the jury's assessment of Mr Bayliss's credibility: see s 108A of the Evidence Act. I accept that it could do so.
The next question is whether the evidence should be excluded under s 137 of the Evidence Act. This requires an assessment of the probative value of the evidence, that is, the extent to which it could rationally affect the probability of a fact in issue along with an examination of the danger of unfair prejudice.
The denial of possession of the methylamphetamine was a brazen and somewhat transparent lie in view of the evidence being shown to Mr Bayliss in the course of the interview. It has a significant capacity to affect the jury's assessment of his credibility. In other words, the probative value on the issue of Mr Bayliss's credibility is quite high.
However, the probative value on the question of whether he supplied the guns is not great. The prosecution case on that issue is based essentially on (i) the evidence expected to be given by Martina Sellers (a pseudonym) [11] that she saw and heard Mr Bayliss supplying the guns, (ii) tendency evidence that he was in possession of three firearms a couple of weeks after the alleged gun supply on 1 February 2017 and that he loved guns, [12] (iii) CCTV footage of him attending the meeting carrying a large bag (said to contain guns), (iv) telephone records establishing contact between him and the co-accused to whom he is alleged to have supplied the weapons, and (v) telephone records establishing his movements at relevant times. All the evidence now under consideration adds to the case that Mr Bayliss's credibility is diminished by the fact that he lied brazenly about the possession of drugs when he appeared to be caught red-handed.
The danger of unfair prejudice lies in the possibility that, if the jury rejects Mr Bayliss's denials based on his lack of credit because of his false denials concerning the methylamphetamine, it will leap to a conclusion that he is guilty of the offences charged without undertaking a proper analysis of the evidence adduced to prove the charges. A false denial is not capable of proving the charges but if his denial becomes the focus of evidence such as the credibility evidence (that he lied in the same interview about the drugs), the jury will have its focus drawn away from the true issues between the prosecution and the defence.
Put another way, the danger of unfair prejudice lies in the possibility that the evidence of the false denials on a different subject in the same interview may be given too much weight when its sole purpose is to impugn the accused man's credibility. Further, the evidence may be misused if the jury reasons that Mr Bayliss has a tendency to lie, or that he has bad character in that respect, or that, because he lied about one subject, he must have lied about the supply of guns. If the jury came to that last conclusion, it is a very short jump to a conclusion that he is guilty of the offence without scrutiny of the evidence actually tendered to prove that allegation.
I accept that it would be relatively easy to fashion a direction as to the limited use to which the evidence may be put and that would be understood by the jury. However, I am not convinced that the jury would be able to apply that direction once its attention was focused on the credibility of Mr Bayliss's denial. It is accepted that juries generally follow and obey directions, but the very existence of s 137 establishes that this is not an axiom that can be applied as if it were holy writ: see, for example, Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15 at [13], R v Adams (No 2) [2016] NSWSC 1359 at [55]-[56], R v Simmons; R v Moore (No 4) [2015] NSWSC 259 at [88].
Having considered those matters, I concluded that the probative value of the evidence was outweighed by the danger of unfair prejudice. As a result, s 137 of the Evidence Act mandated the exclusion of the evidence.
[2]
Endnotes
Transcript ("T"), 22/09/2020, p 941.
T, 22/09/20, p 930.
T, 21/09/2020, p 904.
T, 21/09/2020, p 904.
T, 21/09/2020, p 905.
T, 21/09/2020, pp 903-906.
T, 22/09/2020, p 909.
T, 22/09/2020, pp 932-933.
T, 22/09/2020, p 933.
Stephen Odgers, "Uniform Evidence Law" (15th Edition, Lawbook Co, 2020) at pp 911-912 [EA 108B.60].
R v Al Batat & Ors (No 1) [2020] NSWSC 967.
R v Al Batat & Ors (No 12) [2020] NSWSC 1129.
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Decision last updated: 25 November 2020