R v Alchin [2006] ACTSC 53

2. It seems to me that the threshold question is whether a police record of interview taken in anticipation that a co-offender would give evidence in later proceedings may be tendered in those later proceedings if that person refuses to give evidence. The question is whether the record of interview with that co-offender is capable of falling within the test of being evidence that may be given when the person is "not available" for the purposes of the Evidence Act.

3. There is authority from the decision of Kirby J in the New South Wales Supreme Court in Sneza Suteski [2002] NSWSC 218; (2002) 128 A Crim R 275, to the effect that a person ought be regarded as being unavailable in the circumstances where they simply do not wish to give evidence and make that clear. Mr Taylor had made it clear he does not wish to give evidence.

4. It seems to me that although this is a decision only of a single judge, it is interpreting a common provision to the New South Wales and Commonwealth Evidence Acts. Accordingly, the remarks of the High Court as to the effect that one has to give decisions of interstate courts on common form or uniform legislation apply, and unless I was persuaded that Kirby J was clearly wrong, I ought follow him.

5. It does seem to me that I am not persuaded that he is clearly wrong. Indeed, there would be a sensible legislative purpose to be achieved by permitting such material to go in. For that reason, I answer the threshold question in the affirmative. That is to say that a record of interview may be admitted in a trial on the basis of the author being unavailable in circumstances where the author has made it abundantly clear that they are not willing, for whatever reason, to give sworn evidence.

6. It then becomes a question as to whether under the discretion in s 137, the material ought be excluded on the basis that its unfair prejudice excludes it probative value. The probative value, it seems to me, in this material, is quite significant in that there is a number of points in the record of interview where appropriate cautions were given and where there is an extant sound recording, and Mr Taylor identifies the respondent as having been present from the beginning of the course of criminal conduct that he admits to, of that evening through to past the end of the criminal conduct. The criminal conduct being the events that begin when on the Crown case the respondent and Mr Taylor leave the flat of a friend and are given a lift to Fyshwick, a number of vehicles are stolen, there is an armed robbery at a service station and there is a series of thefts of petrol from service stations.

7. It seems to me that, from questions 33 and 34, there is a clear affirmative answer that the respondent was present, that is clearly probative. At 47 and 48, although he says "possibly" as to the respondent, he identifies the other person previously identified as being the respondent as the person who was there when they were dropped off in Fyshwick. He answers question 71 about the other person taking another vehicle. And there is reference also there to the red Magna vehicle which appears later in photographs and where there is a fingerprint of the accused person, this being a vehicle that was otherwise, the evidence will show, at an auction house ready for sale.

8. At question 114, he indicates that the other person, again previously identified, is in the red Magna. Question 161 and following, he says that the person identified as Ashley, who is previously identified as the other person, had certain items of clothing. Again, I find it would be probative.

9. At questions 185 and following, he identifies himself as a person in a series of photographs and refers to the other person in the photographs, again the other person having being identified, that is relevant. To question 209 similarly, he marks photograph number 5 and identifies the photo of "myself and the other person leaving".

10. Questions 263 and 264 relate to the accused person going back to and identifying a friend's flat and petrol fumes being strong. Which seems to be consistent with what is said to be the evidence that that person will give at trial, and again it is probative and may confirm the veracity of what was said. Question 281 similarly relates to evidence said to be given by Ms Star as to the later comments.

11. It is the case that the tenor of the interview changes towards the end, because after a toilet break Mr Taylor is more frank in clearly identifying the respondent as being his co-offender. But it seems to me that if that is to be tested in relation to what occurred, that would have to occur on a later voir dire either at trial or this afternoon if you want to do it, but I am told that it was tested at the committal proceedings and the investigating police officers gave sworn evidence and were cross-examined on sworn evidence that is consistent with what the transcript says. And the transcript says there was a break to enable Mr Taylor to go to the toilet.

12. In any event, at a series of questions in the latter part of the interview, he identifies the "other person" as the respondent specifically in questions 293, 295 and so forth, and similarly question 314. These answers are highly probative. There is a prejudicial effect in relation to this material because Mr Taylor is not able to be cross-examined. But it seems to me that that would inevitably be the case in these circumstances, and that of itself is not sufficient to justify it being excluded.

13. I would be minded to give a strong warning to the jury that would be beyond the routine warning that I would give to the jury about the evidence of a co-offender. The jury will need to be told that Mr Taylor has declined the opportunity to be present and does not wish to be present where he could be cross-examined by counsel for the defence. And we will discuss the further form of that warning. A person who clearly wishes to avoid being cross-examined would allow the jury to be inclined to draw some inferences about his veracity and the way he would stack up under cross-examination and I will consider further refining of that direction.

14. It does seem to me that there is a small part of the transcript towards the end, questions 320 and following, where Mr Taylor seeks to put greater blame on the respondent and says that it is the respondent who was the initiating factor. That could have a greater prejudicial value. On the other hand, it may be forensically that that ought to go before the jury because if legitimately the defence is wanting to put in the mind of the jury that this bloke is really just trying to "shop somebody", the little bit at the end where he volunteers, "Well, he was really the prime moving force", might be more consistent with that.

15. I would exclude that, if the defence wants that excluded, on the basis that by putting the respondent in as the prime offender the prejudicial value excludes the probative value. So that little passage would be excluded if the prosecution seeks to put it in. But if the defence is of the view that it gives a fairer basis for its attack on the overall credibility of Mr Taylor's record of interview, I would allow that to remain in. It would be absolutely appropriate that this be dealt with after the defence has had more time to consider the question.

16. Now I have identified those aspects which I regard to be probative and admissible. It may be that it is fairer for the jury to have it in context and there might be some discussions as to whether it ought all go in. And that could be dealt with before the trial.

17. The threshold question, which I answered in the affirmative on the basis of what has been said by a single judge of the New South Wales Supreme Court, is a significant question of significant general interest or importance. I do not know what the position is of those advising the accused in this matter but it is a question that needs to be resolved by a court of appeal somewhere in Australia at some point.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Connolly

Solicitor for the Applicant: ACT Director of Public Prosecutions

Solicitor for the Respondent: Legal Aid Office (ACT)