Solicitors:
Director of Public Prosecutions
Younes + Espiner Lawyers (B Brooks)
File Number(s): 2015/00101058
[2]
EX TEMPORE Judgment (REVISED)
The accused has objected to evidence proposed to be adduced through the next witness, Mr Sean Bailey. The evidence concerns statements made to Mr Bailey in the immediate aftermath of the stabbing of the witness and alleged victim, Adam Swindell. While Mr Swindell is not identified by name, it appears to be common ground that the jury may readily infer that the person to whom Mr Bailey was speaking was Mr Swindell. For one thing it seems that he was the only person in the area who had been stabbed in the arm.
The statement of Mr Bailey tendered on the voir dire as exhibit VD6 records the following conversation and circumstances:
"11. I then saw a number of people crouching down around the guy I saw trip on the gutter. It is at this point one of our guards Bernadette walked over. When Bernadette was over there, she yelled out to me to come over. When I went over there, the first thing I noticed was blood everywhere on this guy in the gutter. Not just on him but on the road too. I saw someone had taken their shirt off and placed it in the wound of the guy that was on the ground.
12. Whilst standing there, I had a male walk up to me that had been stabbed in the arm. From Memory I think the stab wound was on his left arm but cannot remember 100%.
13. I had a conversation with this male. I said, 'What happened?'
He said, 'I've been stabbed.'
I said, 'By who?
He said, 'By two guys'. As he said this, he was pointing in the direction of west on Main Road.
I said, 'Was that the guy in the red shirt?'
He said, 'Yeah'. This guy started to talk to other people then."
It is the prosecution case that the guy in the "red shirt" - really a red singlet according to a photograph taken earlier on the night and the accused's formal admissions in exhibit 1 - is the accused Bradley Brooks.
Something like eleven eyewitnesses have given evidence to this point in the trial and it is fair to say that there is a good deal of inconsistency between the various versions of events given by those witnesses. As the Crown opened its case, it contends that there were two incidents that occurred very shortly after one another. In the first incident Bradley Brooks is alleged to have stabbed Gregory Gibbins in the chest while they were standing outside a pizza shop on Main Road at Toukley. That stabbing occurred immediately after a confrontation between Joel Brooks and Adam Swindell in which the latter pushed the former backwards and possibly to the ground.
The second incident occurred a very short distance away from the pizza shop and around the corner in a vacant lot or parking area. On the prosecution case, this second incident occurred when Adam Swindell ran and was chased by Joel and Bradley Brooks. Again, there is a good deal of inconsistency in the evidence as to whether Bradley Brooks - that is, the man in the red shirt or singlet - was present during that second incident.
The evidence of Mr Bailey to which objection is taken is hearsay evidence. Accordingly it is inadmissible under s 59 of the Evidence Act 1995 (NSW) unless there is an exception to the hearsay rule. In this case the prosecution relies on the exception in s 66 of the Evidence Act which applies in criminal proceedings where the maker of a previous representation is available to give evidence about the asserted fact. In this case the maker of the previous representation is Adam Swindell. The asserted fact or facts that may be established by the alleged representation to Mr Bailey include that Mr Swindell was stabbed by two guys and that one of them was the guy in the red shirt.
Section 66 provides that the hearsay rule does not apply to evidence of the representation, that is given by (a) the person (that is Mr Swindell) or (and I underline or) (b) a person who saw or heard the representation being made (that is Mr Bailey) provided that "when the representation was made the occurrence of the asserted fact was fresh in the memory of the person who made the representation" (again, that is Mr Swindell).
Section 66 only applies if the person who made the representation has been, or is to be, called in the proceedings. In this case Mr Swindell has been called to give evidence. He was the first eyewitness in the case and has been excused.
The basis of the objection developed over the course of the argument. [1] Ultimately, it was conceded that s 66 applied to the evidence. In particular it was accepted that Mr Swindell had been called to give evidence and that the asserted fact was fresh in his memory at the time that Mr Swindell allegedly made the representation to Mr Bailey. However, it was submitted that there was unfairness in allowing the evidence to be given by Mr Bailey because Mr Swindell gave no evidence of making any such representation to any person. In fact, Mr Swindell was not asked by the learned Crown Prosecutor whether he spoke to a security guard or to any other person in the immediate aftermath of the stabbing.
Accordingly, it was put that the defence did not have the opportunity to test Mr Swindell as to whether he made such a representation. [2] Mr Boe accepted in argument that this submission was not strictly correct. [3] The defence did have the opportunity to cross-examine on the issue but made the sound forensic decision not to raise the subject, given that the issue had not been examined upon in the evidence-in-chief.
The provision in s 66 plainly contemplates circumstances where the maker of the representation does not give evidence of the representation. That is plain by the use of the word "or" in subs (2) between subparagraphs (a) and (b). In other words, the evidence of the previous representation can be given (to use the facts of this case) by Mr Swindell himself, or by Mr Bailey, or conceivably by both.
There are a number of authorities supporting that construction. For example, in a restricted judgment, [4] the NSW Court of Criminal Appeal held at [42]:
"[I]t also has to be borne in mind that s 66 does not require that the complainant remembers having made a complaint to someone else. By its express terms, s 66(2) contemplates circumstances where an offence is fresh in the complainant's mind at the time that a complaint is made, but the complainant does not later remember having made that complaint."
The Victorian Court of Appeal came to a similar conclusion in Singh v The Queen. [5] In that case the complainant in a rape case had no memory either of the incident giving rise to the allegation of rape, or any memory of having complained to people after the event. The Crown case was that she was so drunk that she was incapable of giving consent to sexual intercourse. The prosecution was permitted to call evidence of the complaint she had made, even though she could give no evidence either of the rape itself or of any complaint that she made. The Court not only held that the evidence was admissible as an exception to the hearsay rule pursuant to s 66, but also rejected a variety of arguments that the admission of the evidence gave rise to unfair prejudice.
In Griffin v The Queen [6] the Victorian Court of Appeal held at [17]:
"The first matter raised on the hearing can be dealt with briefly. The High Court has determined the point. In Breen v The Queen the High Court made it clear that evidence of complaint could satisfy the requirements of the law with respect to the admissibility of complaints in cases of sexual offences even when the complainant gave no evidence of making the particular complaint."
Breen v The Queen [7] was a case in the High Court decided well before the introduction of the Uniform Evidence Laws and at a time when evidence of complaint in sexual assault matters fell into a special exception to the hearsay rule. Further, the evidence in such cases was admitted not to prove the fact of the allegation but to bolster the complainant's credibility. The extent to which that decision should guide the interpretation of s 66 may be thought to be questionable.
However, the terms of s 66 are clear. There is no requirement that the complainant or the person who made the previous representation give evidence of the representation. Putting to one side the temporal proximity requirement (that is "fresh in the memory"), all that is required is that the person is available to give evidence and has been, or will be, called in the proceedings.
It would be an unusual case where the operation of s 66 itself would give rise to relevant unfairness under ss 135 and 137. [8] However, I accept that there may be such cases but I do not accept that this is one of them. While the representation to Mr Bailey itself was not subject to evidence, the facts sought to be established by the representation were given by Mr Swindell.
While there was a substantial attack on the credibility of that part of his evidence, and while there are various inconsistencies arising from other evidence as to whether his account should be accepted, let alone be accepted beyond a reasonable doubt, I am unable to perceive any real unfairness or unfair prejudice in the admission of the evidence of Mr Bailey. Against that, the probative value of the evidence, that is the extent to which it is capable of affecting the probability of a fact in issue, is very high.
If there were perceived to be any real unfairness to the accused it would be open to the Crown to recall Mr Swindell either to ask him about any such conversation or to allow counsel for the accused to cross-examine as to any such conversation. However, one could well imagine that counsel for the accused would prefer to be in the position where he can simply make the submission to the jury that Mr Swindell himself gave no such evidence.
It is also the case that issues of reliability cannot guide a determination of whether the evidence should be admitted. [9] Pursuant to s 165 of the Evidence Act a warning may be given that hearsay evidence such as this may be unreliable. The accused has indicated that he will request such a warning and unless I am persuaded that there are good reasons for not giving such a warning I am inclined to warn the jury about the use of such evidence and the reasons that it may be unreliable. However that determination does not need to be made at this point of the trial.
My ruling is that the evidence is admissible.
[3]
Endnotes
See Submissions Concerning Alleged Hearsay Evidence (MFI 18), the contents of which were abandoned, Supplementary Submissions Concerning Alleged Hearsay Evidence (MFI 21), transcript (T) 418-424 especially at 419-420, 518.
Supplementary Submissions (MFI 21) at [10].
T 519-520.
[2016] NSWCCA 92.
[2011] VSCA 263.
[2011] VSCA 304.
(1976) 180 CLR 233; [1976] HCA 15.
Cf Grills v The Queen [1996] HCATrans 273, (1996) 70 ALJR 905 and R v MSK and MAK (2004) 61 NSWLR 204; [2004] NSWCCA 308 at [42]-[47] while acknowledging the issues are not really analogous. And see the commentary in Odgers, Uniform Evidence Law (Lawbook Co, 11th ed) p 828-829 and in the most recent edition (not available in hardcover): Odgers, Uniform Evidence Law (Lawbook Co, 12th ed) p 1157-1158. A point made by the author is that where the objecting party does not have the opportunity to cross-examine the maker of the representation, the evidence may be excluded under ss 135 or 137.
Cf IMM v The Queen [2016] HCA 14.
[4]
Amendments
20 April 2017 - Typographical error on coversheet
28 April 2017 - Correction to footnote 8.
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Decision last updated: 17 November 2017