R v Alameddine (No 2)

File Number(s): 2023/00216790

Publication restriction: Nil.

Judgment

1. HIS HONOUR: Sonia Alameddine stands for trial on an indictment bearing date 7 April 2025, containing three counts. It is only necessary for me for the purpose of this evidentiary ruling to recite the first count. It is this:

"On 6 July 2023, at Redfern in the State of New South Wales, [Sonia Alameddine] did break and enter the dwelling house of Daniel Costi, at 6/44 Young Street, Redfern, with intent to commit a serious indictable offence therein, namely intimidation, in circumstances of special aggravation, namely was in company with Joshua Hetaraka and at the time was armed with a dangerous weapon, namely a pistol."

That is an offence contrary to s 113(3) of the Crimes Act 1900. Count 2 is in the alternative to Count 1 and there is a third count of another offence, one contrary to s 33B(2) of the Crimes Act 1900 containing a lesser number of elements.

2. At the time of the offence, the dwelling house of Daniel Costi was occupied not by him but by Benjamin Igoe. The Crown case is that Mr Igoe is not available to give evidence. Whether a person is unavailable to give evidence depends on the definition of that concept which is contained in the dictionary to the Evidence Act 1995 Pt 2 cl 4 which provides this:

"1. For the purposes of this Act, a person is taken not to be available to give evidence about a fact if:

a) the person is dead, or

b) the person is for any reason other than the application of s 16 (Competence and Compellability: Judges and jurors), not competent to give the evidence, or

c) the person is mentally or physically unable to give the evidence and it is not reasonably practicable to overcome that inability, or

d) it would be unlawful for the person to give the evidence, or

e) a provision of this Act prohibits the evidence being given, or

f) reasonable steps have been taken, by the parties seeking to prove the person is not available, to find the person or secure his or her attendance, but without success, or

g) reasonable steps have been taken, by the parties seeking to prove the person is not available, to compel the person to give the evidence, but without success.

2. In all other cases a person is taken to be available to give evidence about the fact."

3. The Crown in the current case relies upon Benjamin Igoe being unavailable pursuant to paragraphs (f) and (g) of subsection (1) of that provision. The relevant evidence is Exhibit A-A, a subpoena to give evidence issued at the request of the Director of Public Prosecutions (‘DPP’) by Ms Shelley Cluff requiring the appearance of Benjamin Igoe at the trial, which was scheduled to commence last Monday, 7 April 2025 at 9.30am. That subpoena was issued on 13 January 2025. Attempts to serve the subpoena are proved by Exhibit B-B, a statement of Detective Senior Constable Jay Opie, the officer‑in‑charge (‘OIC’) of the investigation, bearing date 4 April 2025, and an exchange of emails between the Detective Senior Constable and Benjamin Igoe which is Exhibit C-C, and a further statement of Detective Senior Constable Opie dated 8 April 2025, which is Exhibit VD5.

4. Relevant also, is a firsthand hearsay notice bearing date 3 April 2025 sent by the ODPP to the accused's solicitor on 3 April 2025, which is Exhibit VD4. Oral evidence was also adduced from Detective Senior Constable Opie this morning. Further attempts by police to execute a bench warrant which was issued by the list judge, Hanley DCJ, on Monday, 7 April, were unsuccessful. They were unsuccessful on the night of Monday, 7 April. I directed that further attempts be undertaken to serve that warrant. Those attempts have been unsuccessful.

5. The Detective Senior Constable gave evidence this morning that he obtained an undertaking by the witness to come to Court this morning and, in a second call, an undertaking to the same effect was given but it appeared clear to the Detective Senior Constable that the witness was increasingly becoming less determined to appear before the Court and appeared to be accepting advice from a friend or acquaintance as to why he ought not attend the hearing today. He was called outside the Court at 10.39am three times but there was no appearance by him then and certainly he has not come forward today.

6. I am satisfied on the evidence that he has been served with a subpoena to give evidence. He had long and adequate notice of when the case was to be heard. All reasonable steps have been taken by the Crown to secure his attendance, to compel his personal appearance, but those steps have all been unsuccessful. Accordingly, I find that Benjamin Igoe is unavailable within the meaning of the Dictionary to the Evidence Act Pt 2, cl 4(1)(f) and (g).

7. The Crown seeks to rely upon a statement made by Mr Igoe on 6 July 2023 which is Exhibit VD1. However, I have identified two errors within it. In paragraph 5 occurs the matter "Tonight, Thursday 07/07/2023" but that Thursday was in fact 5 July 2023 rather than the 7th. The statement was taken at 11.20pm on Thursday, 6 July 2023, some 26 hours after relevant events occurred. The Thursday was 6 July 2023. The statement was taken at 11.20pm, later that evening, roughly an hour after the events in question. The second error in the statement is a spelling error.

8. In paragraph 16, there is a recitation of a conversation, and the fourth part of that conversation is this: "Male Said ‑ 'Oh God, oh know.'" However, it is common ground that the word typed as "k‑n‑o‑w" ought to have been "n‑o."

Facts

9. In my view, the more significant evidence is what is recorded on police body‑worn cameras. Yesterday, I had played to me two audio files. The first is Exhibit VD6, a transcript of which is MFI VD1. The second was exhibit VD7, a transcript of which is MFI VD2. Today, there was a further transcript of another audio file, the audio file being from the body‑worn camera of Senior Constable/Acting Sergeant Rhys Kirk, from which further evidence will be adduced before the jury at the request of the defence. These matters are the subject of the notice given by the Crown, which is Exhibit VD4. I have both listened to Exhibit VD6 and Exhibit VD7, and have carefully read the transcript of those audio files. The easiest way of understanding them is to colour‑code the speakers involved.

10. The police attended the crime scene, unit 6 at 44 Young Street, Redfern, in answer to a phone call made by the owner of those premises, Mr Daniel Costi. He was not present at the time, but had a device which enabled him to observe persons at his front door who were seeking entry into the flat, in which Mr Igoe was at the relevant time. That alerted him to a knocking at the door by the accused, and what subsequently happened he could see on a video transmitted by the device at his front door to him, thus enabling him to alert the police to attend. MFI 6 commences with Constable Forsberg commanding those inside the premises to open the door and to come out with hands on head, and preferably on their knees.

11. The first recording is of a statement by Igoe to the effect that the other person inside the house was "just my friend". He was followed out of the front door, into the common area of the block of flats, by the accused. Clearly, the witness wished the police to know that the accused was his friend. After the accused left the premises, the door to the premises was shut. Mr Igoe then told the police his first name and told the police that he was staying at the flat temporarily. However, Constable Forsberg was alerted to the presence of another person in the flat after the door had shut, because he heard another voice. He then directed that person to put his hands on his head and to get down on his knees. That person is known as Joshua. There were about 20 seconds between Igoe and the accused leaving the flat and being led out onto the landing, where they both knelt with hands on head, and when Joshua came out, he did the same thing.

12. Constable Forsberg told Igoe that he needed to go into the flat and have a look around. There was then a discussion, in particular about Mr Igoe's dog, who is known as Snickers, a pit bull/Staffordshire Terrier cross. During a short inspection, Igoe told the constable that he'd been renovating and cleaning the unit and, when asked to provide identification, Igoe said that he needed to find his wallet within the flat. In the meantime, Constable Forsberg left the flat, and was present when Constable Ninovic, a female constable, was interacting with the accused. The accused is recorded as saying:

"This is Dan's place, and so Dan lives here. So I keep saying, 'Dan,' and..(not transcribable)..opened up so there's nothing."

A little later, she goes on to mention the name "Ben", which was probably what she said when the transcript records "indistinct".

13. Exhibit VD6 goes on to record other conversations between Constable Forsberg and, for example, Mr Daniel Costi on the telephone. Then, after a caution was given by Constable Forsberg to Igoe, Igoe says:

"Can we go over this way a little bit?"

Igoe goes on to say this:

"I just tried to push the door shut. Yeah, I was like, 'Woah, what's going on?' and tried to shut the door. That was it. Then she worked out that Dan wasn't there and it was me, and then they calmed down.

FORSBERG: What did they say to you?

IGOE: Not really, they were just like, 'Where's Dan?' and I was like, 'He's not here'. I'm just a bit worried about talking about this because I don't want to come back and like because I don't want it to come back and bite me on the ass.

FORSBERG: Are you willing to give us a statement about it?

IGOE: Not right now, no. ... I will come back in probably at a later date and talk about it, but not while they're here. ... I can come down to the station and give a statement.

FORSBERG: What has the chick said to you?

IGOE: Not much, just that there's money owed somewhere from somewhere along the lines."

14. There was then a movement and the body worn camera of Constable Forsberg came into action when Constable Ninovic carried out a search of the accused’s person. Constable Forsberg then called for a caged truck, and the transcript refers to a caged truck. That was obviously to convey the person arrested, namely the accused and Joshua, to the Mascot Police Station. At this point, Constable Forsberg was asking questions of the accused. I will not comment on that because, insofar as it contains admissions by the accused, it is irrelevant.

15. I turn then to Exhibit VD7, the transcript of which is MFI VD2. At the foot of the first page of the transcript, at 00:02:12, Igoe asked, "Are they gone?" Constable Forsberg replies, "Yeah, yeah, they can't hear you". Igoe is then recorded as saying this:

"I was just in there cleaning up the kitchen because we've been... There's been bathroom renovations... I've had a Xanax, so I'm a little bit... So I'm cleaning up the kitchen and hear a knock on the door, and I'm like, 'Who is it?' and it's like, 'It's Sonia,' and I was like ‑ open the door ‑ like, 'Hello,' because I haven't seen her for ages. And Snickers and her two dogs get along so I was like, 'Oh, we need to organise something to do,' and then next minute, bang, this dude's just barged through the door and he had, had, the, the gun on him, and I was just like, 'What's this about?' And she's going, 'No, it's not him, not him, not him.' And that's when he started walking around trying to find what he could find. I was like, 'What's this about?' like, 'What's going on?' ‑ 'Oh, Dan's been paid out. He owes me money.' Like, 'This is nothing to do with me, man.' ... 'He's not here.' 'Well, where is he?' I said, 'I don't know, I'll try to find out.' So I tried to ring Dan, and that's when he clued on that something was happening, because the camera was on too, so he's rung you guys."

16. Questions were then directed by Constable Forsberg about what the firearm looked like. The Senior Constable then asked Igoe where the firearm may be, and Igoe replied thus:

"When you guys knocked on the door, I think he ran into the lounge room area, I think it's been stashed somewhere."

17. There was then further conversation, not of any great moment, except during one exchange Igoe said that he was "just a bit shaken up". On page 4 of MFI VD2, at the foot, Constable Forsberg asked Igoe whether he only knew the current accused and the witness said this:

"I only know Sonia, I met her a couple of times. I stayed at a place just off Oxford Street and she stayed there a couple of nights as well. The dogs were there, and ... I'm just going to sit."

18. The constable then asked Igoe whether he was a "bit dizzy". He replied that he had half a Xanax when he was in the kitchen. In further conversation, he told Constable Forsberg that he was "happy to assist in whatever way I can". At the foot of page 7, one can hear Senior Constable/Acting Sergeant Rhys Kirk enter into the conversation, and they talk about the dog.

19. On page 7 of the transcript of Exhibit VD7, there is reference made by Constable Forsberg to the need for Igoe to "just chill out. There's no need to stress about anything". On page 9, at 00:16:33, Igoe says this in answer to a question about an orange jacket that was found in the flat:

"Orange jacket. I just ‑ I literally just dragged all this crap out of the kitchen, so I'd be looking over in the corner where the bins and stuff are, because God knows what he could have gotten into. When you guys knocked on the door, he fucking went rats ... He went over that way."

This was in circumstances where the police were searching the unit to seek to find the firearm. The person who "went rats" is clearly a reference to Joshua.

20. There is nothing physically in the rest of the transcript or the exhibit, of which the transcript is a derivative, that is pertinent. As I mentioned before, within a few hours after the events now in question, the witness Igoe went to the police station a Mascot and made a statement at 11.20pm. The relevant parts of the statement are these:

"6. About 10pm, I heard a knock on the front door. There is just one wooden door at the entry. It was locked. It's always locked. There was no buzz of the intercom downstairs. The back door on the ground level of the block is always opened. Unit 6 is on the third and top floor of the block.

7. I went to the front door. I said ‑ 'Who is it?'

8. The response was a little muffled but it sounded like a girl so I opened the door slightly, there is a hook on the door, I latched it over to lock it and opened it. I realised it was Sonia Alameddine so I unlatched the lock. I had met her a couple of times before this. Our dogs go for play dates together. I went to hug Sonia.

9. A male was behind her, I've never met him before in my life. He had a face covered mask, I believe a black jacket. He looked mid to late 30s. I think he might have had a man bun with dark hair. He I'm pretty sure using his right hand pulled a silver pistol from his jacket pocket, he barged past Sonia and pushed the door open and came inside. I'm not too familiar with guns, but it was shiny silver and probably the length of my Samsung phone.

Sonia said ‑ 'No, wrong person, wrong person, it's not who we are after.'

10. The male started looking things, he picked up my Louis Vuitton bag and looked through it.

11. I spoke to Sonia.

I said ‑ 'What's this about, what's going on? Why are you doing this?'

Sonia said ‑ 'He owes me $16000 and he is avoiding me.'

I said ‑ 'That's not Dan's stuff. This is my stuff.'

Sonia said ‑ 'Can you call Dan? And find out where he is and don't say a word about what is going on.'

12. I called Dan from my mobile phone to his mobile phone. I spoke with him.

I said ‑ 'Where are you?'

Dan said ‑ 'Why?'

I said ‑ 'I haven't seen you all day, am I expecting you home tonight? What's going on?'

Dan said ‑ 'What's going on at the house? Is it just you there?'

I said ‑ 'Yeah, yeah of course it's just me.'

Dan said ‑ 'Ben, I have just seen it on the camera. What is going on?' I said ‑ 'I don't really know. I need to come and see you. Where are you staying?'

Dan said ‑ 'I'm at the Meriton.'

I said ‑ 'Cool, no worries.' Dan said ‑ 'Is everything all right?' I said, 'Yeah. I need to try and find some food.' Dan said ‑ 'Okay. We might be able to meet or something.'

Dan then hung up the phone.

13. The male went into Dan's room.

14. I was in the kitchen, I spoke with Sonia. I said, 'He's not in my room, is he? I've got nothing to do with this.'

15. Sonia walked to my room and spoke to the male. Sonia said ‑ 'Not this room, look in that room.'

Sonia pointed from my room, then towards Dan's room.

16. Both Sonia and the male walked into the hallway, as police knocked on the closed front door.

I said ‑ 'Who is it?'

'Police.'

I said ‑ 'Hang on.'

Male said ‑ 'Oh God, oh no.'

The male took off his jacket and put it somewhere in the lounge room.

17. Police opened the door and told me to get down and get on my knees. I did exactly that. Both Sonia and the male also got down on the ground.

Male officer ‑ 'How did you get access to this house?'

I said ‑ 'I'm living here, it's not my house but I'm living here. You can call Dan to confirm that.'

18. The male officer and I went downstairs to talk. He told me that the male would be getting arrested for a breach of bail. He could see that I was shaken up, so I had a sit down. I waited. I called my friend, Nicholas Papas, he is my lawyer. I told him what had happened.

19. More police arrived. I told police what had happened and offered to help. I contacted Dan to come home. I got my dog, Snickers, from the unit and came to Mascot Police Station to make this statement.

20. I don't think I was injured, just scared and shaken up. I've never had a gun held at me before. I was really scared."

Submissions on Application

21. The Crown's submissions on the admissibility of this evidence are MFI 2. The defence submissions are MFI 3. The Crown seeks to introduce what was said by Igoe to police as recorded in the police body‑worn cameras. The Crown also seeks to introduce the statement of Igoe dated 6 July 2023, which is Exhibit VD1.

22. The defence has submitted that the evidence which the Crown seeks to adduce ought be excluded under s 137 of the Evidence Act 1995 on the basis that the danger of unfair prejudice to the accused outweighs the probative value of the evidence. The submissions made by Ms Wong state a number of pertinent principles and then an authority for each of those principles. The first is that the probative value of a statement is significantly reduced by the non‑availability of the witness for cross‑examination.

23. Cited for that proposition is R v Le [2002] NSWCCA 193, a judgment of Sheller JA with whom Lavine J and Simpson J concurred. In that case, his Honour was dealing with a murder conviction following upon a trial conducted by McClellan J in the Common Law Division. His Honour said this:

“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.

Whilst the general proposition is correct, the evidence which was challenged in that case was rightly admitted by the trial judge who left the matter to the jury.

24. Amongst other things, it was pointed out that the non‑availability of the witness for cross‑examination was a matter of prejudice to both the Crown and the accused. I entirely accept that an inability to cross examine a witness because of that witness's absence might cause prejudice, but whether it automatically follows that the jury might misuse the evidence or give the evidence undue weight when directions are given to the jury by the trial judge cannot be a general proposition.

25. The defence submissions also refer to the decision of R v TAI, Alatin**i [2016] NSWCCA 207 (‘TAI’). It has been submitted that this case has similar characteristics to that matter. Paragraph 19 of the defence submissions is this:

“This case bears many similar characteristics with the matter of TAI, including the following:

a) The unavailable witness would be the primary, if not sole witness to the actual facts in issue. It is therefore submitted that cross examination of Police officers would be no substitute. The Crown submits in this case, that a point of difference is that this Accused has available to her the fact that Mr Igoe initially denied the Crown version of events to Mr Costi and the Police officers. However, this simply goes to further inconsistencies in the witnesses’ version that cannot be tested by cross examination.

b) Both cases lack independent verification of the alleged incident. In this case, Mr Costi cannot shed any light on what occurs inside the unit, as his Ring camera does not reach that far inside.”

26. TAI was a Crown appeal against a decision of Hanley SC DCJ. His Honour had excluded statements of a deceased complainant. However, it is important to note what was involved in that case. At [31], Beazley P (as her Excellency then was) quoted what his Honour said. It must be carefully recorded what his Honour did:

“31. His Honour determined, therefore, to exclude the evidence pursuant to s 135(a). His reasons were as follows:

“Here the cross-examination of the officer-in-charge indicated the multitude of investigative avenues that should have been followed up, were not. The defence asked rhetorically how can the defence deal with issues for the cross-examination of other witnesses that could undermine the CCTV when the police have failed to investigate them and had the opportunity to do so.

… Prior to the evidence today, I can indicate I had come to the view that I thought the trial should be able to proceed on the basis that any prejudice to the accused could be dealt with by way of cross-examination. However, in the course of events that unfolded today, the fact that statements are still being taken and evidence still being produced as late as Friday and served on the accused this morning, and the fact that statements from witnesses that should have been taken were not taken, has placed the defendant in a position where he suffers a prejudice that is a real one. I am not satisfied that most matters concerning the complainant’s unreliability or credibility could be explored by the defence at trial through other evidence. The opportunity available to the defence to test the reliability of the complainant’s evidence with the evidence of other witnesses has been thwarted by the inadequacy of the police investigation.

Accordingly, I am satisfied there is a real risk the jury will place greater weight on the untested evidence of the complainant, Mr Ninnes, and misuse the evidence that is unfair to the accused. In doing so, I have taken into account the evidence of Mr Ninnes, which must not be looked at in isolation. I have considered his evidence in the context of the whole of the Crown case and the material available to the defence that should have been available to assist them in arguing to a jury that they should have a reasonable doubt about the reliability and veracity of the allegation. I have considered the ‘particular facts, the character of the evidence in issue and the nature and strength of the potential prejudice’ (Fletcher v R unreported VIC VC 201505064; see also Webb v R [2012] NSWCCA 216).

Despite the fact that the jury would have the benefit of directions, I am not satisfied this could overcome the actual, as opposed to potential prejudice, to the accused. This could possibly have been avoided if a basic investigation had been carried out. As it is, there was material still being obtained, as I have indicated, on the night of the first day that was the last time the case was before me, and even up to the provision of the triple-0 calls last Friday. Accordingly, I am satisfied the probative value of the evidence is substantially outweighed by the danger the evidence might be unfairly prejudicial to the accused and I will not allow the evidence of Mr Ninnes as contained in his statements to be adduced at the trial of the accused.””

27. The circumstances of TAI are quite different to the circumstances involved in the current case. There has been no ongoing obtaining of evidence as occurred in the primary case. Further submissions made by the defence are these:

“21. If the party can inform the court of significant issues that go to the unavailable witnesses’ credit, and which necessitate cross-examination, the unfair prejudice may be greater and would tilt the balancing exercise towards exclusion. R v A (No 3) [2015] NSWSC 79 at [12] per Bellew J.

22. As outlined, there are significant issues with Mr Igoe’s credit.

23. It is necessary for the trial judge to identify the asserted danger of unfair prejudice. Regina v RN [2005] NSWCCA 413 esp at para [11].”

28. In R v A (No 3) [2015] NSWSC 79, Bellew J dealt with a case where the Crown sought to tender passages of the statement of a witness who police had not successfully served with a subpoena to give evidence. No prior notice had been given to the accused until the day on which the application was made. That was a case where counsel for the accused had instructions to cross examine the witness as to her credit. The first matter relied upon by learned counsel for the accused in that case, Mr Terracini, was that no reasonable notice had been given. His Honour went on to say this:

“8. The second matter upon which Mr Terracini relied was the inability to cross-examine the witness if the evidence were admitted. In advancing this submission Mr Terracini informed me from the bar table that he was in possession of instructions which went directly to the credit of the witness, including alleged previous drug dealing activities as well as other matters. There is no obviously formal evidence of such matters before the Court, but I accept unreservedly what has been put to me in that regard from the Bar table by senior counsel. Mr Terracini submitted that the loss of the opportunity to cross examine the witness gave rise to prejudice which was cumulative upon that which arose from the late notice.

9. I have already outlined the circumstances in which late notice was given. Whilst no criticism can be levelled personally at the Crown Prosecutor in that regard, it remains the case that notice was not given until immediately before the Crown case was to be closed. In my view, that is a relevant factor to be taken into account in determining whether the evidence ought be excluded. The Crown did not suggest otherwise.

10. The inability of an accused to cross-examine a witness is also a relevant consideration for the purposes of ss. 135 and 137 of the Act (see R v Suteski (2002) 56 NSWLR 184; [2002] NSWCCA 509 at [126] per Wood CJ at CL) although the bare fact of that inability is not necessarily decisive of the issues which arise under those sections: Ordukaya v Hicks [2000] NSWCA 180; Bakerland Pty Limited v Coleridge [2002] NSWCA 30; R v Clark [2001] NSWCCA 494 esp. at [164] per Heydon JA (as he then was). In Suteski, having made reference (at [126]) to those authorities, Wood CJ at CL said at [127]:

“The decisions mentioned clearly depend upon their particular facts, that is, upon the character of the evidence involved and upon the nature or strength of the potential prejudice to the defendant. Each case in my view needs to be examined individually by reference to the well-understood balancing exercise.”

11. Ultimately in Suteski his Honour concluded (at [129]) that on the facts of that case the complaint as to the existence of prejudice arising from the inability to cross-examine the witness in question was somewhat speculative. The relevant ground of appeal was dismissed.

12. In the present circumstances, I am satisfied that the prejudice to the accused by being denied the opportunity to cross-examine the witness is not speculative at all. Senior counsel for the accused has articulated various matters which he wishes to pursue, on instructions, and which go to the credit of the witness. Coupled with the fact notice was only given by the Crown within the last 24 hours, the inability of the accused to cross-examine the witness gives rise to a degree of prejudice which, in my view, justifies the exclusion of the evidence.”

29. It is clear to me that the prejudice was clearly shown in that case. Ms Wong then pointed out that it was necessary for the trial judge to identify the asserted danger of unfair prejudice, but what the unfair prejudice is in this case has not been adequately voiced by counsel herself, merely the general allegation that the jury might misuse the evidence, despite any directions which are given to them by the trial judge.

30. In R v RN [2005] NSWCCA 413, the issue concerned tendency or coincidence evidence. The judgment the Court was given by Sully J, with whom Grove and Howie JJ agreed. His Honour said this:

“11 What his Honour had then to do was to define what prejudicial effect, if any, the admission of the challenged evidence might have upon the respondent. Having thus identified some perceived prejudice, his Honour had to carry out the exercise of balancing the high probative value which his Honour saw, correctly as I respectfully think, in the challenged evidence, against that perceived prejudice, so as to reach a considered and reasoned answer to the question whether the former factor outweighed substantially the latter factor. The essence of that task is described as follows by McHugh J in Pfennig v The Queen (1994-1995) 182 CLR 461 at 528, 529:

“If there is a real risk that the admission of such evidence may prejudice the fair trial of the criminal charge before the court, the interests of justice require the trial judge to make a value judgment, not a mathematical calculation. The judge must compare the probative strength of the evidence with the degree of risk of an unfair trial if the evidence is admitted. Admitting the evidence will serve the interests of justice only if the judge concludes that the probative force of the evidence compared to the degree of risk of an unfair trial is such that fair minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.”

12 This approach was followed by Hunt CJ at CL in R v Milat, unreported: 5 September 1996.”

31. Again, I must point out that the presence of some prejudice is not an absolute bar to the admissibility of the evidence. There must be a weighing of competing interests. Here, for example, learned counsel for the defence referred to the use, at times, by Igoe of the plural verb "they", referring to both the accused and Joshua, albeit that at other times he was able to distinguish between an act done by the accused and an act done by Joshua independently of the other. This is capable of being understood by any rational juror. It is merely an incorrect use of English, and often the use of a shortcut when one can distinguish between the activities of two people, but one might express in global terms the fact that they entered, when it appears that one entered in one fashion and the other entered in a different fashion altogether. This is a weighing exercise of competing interests. The film speaks for itself. One can hear the words used by Igoe to describe certain things, often in the context of the physical surrounds in which they found themselves in and out of the flat at various times.

32. The film is contemporaneous with the events described in it, albeit that there was a history given of what happened immediately prior to the arrival of the police, but that was merely a matter of minutes, not a matter of hours, half‑days or days, or weeks or months. This statement was made within a few hours of the event. There may be small differences in between it, but that generally points to authenticity, rather than an attempt to deceive or mislead or cover up. Statements which are verbatim, exactly the same, rarely attract any comment about their reliability.

33. The defence relies upon s 135 which gives the Court a general discretion to exclude evidence but, in criminal proceedings, which this is, s 137 must be considered. That provides that in criminal proceedings the Court must refuse to admit evidence adduced by the prosecution if its probative value is outweighed by the danger of unfair prejudice to the defendant. The evidence in question is highly probative. It is almost contemporaneous with the events then in question.

34. The police officers who recorded the body‑worn camera images can comment on it and be cross‑examined about it. The Crown intends to call Mr Costi to give evidence about what he saw and heard on his mobile telephone as a result of the use of the device at the entrance to his unit and can also, no doubt, comment on matters that are contained in his statement which, unfortunately, I have not seen.

35. How exactly this almost contemporaneous evidence may be misused by the jury is unclear. In fact, the submissions which have been made all point in my opinion to a belief that the evidence may be used to convict the accused. However, that is not a danger of unfair prejudice. Unfair prejudice is how the evidence might be misused by the jury and any inconsistencies can, of course, be pointed to by counsel for the defence in her submissions, and I will certainly accede to any application for any particular directions that may be made by the accused as to some of the items of the evidence that can be gleaned from what is recorded on the film by Igoe and also on any parts of Igoe's statement.

36. However, I am not persuaded in this case, in these very peculiar circumstances, that the evidence which the Crown seeks to adduce is outweighed by the danger of unfair prejudice to the accused.

Decision

37. For those reasons, I accede to the application made by the Crown to adduce the evidence which I have just discussed.

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