R v Clare

The basis of the application

1. It is submitted that the evidence is admissible in Mr Clare's trial. It is not sought to adduce the representation in Mr Morley's trial and s 136 Evidence Act allows for the evidence to be limited to her trial only.
2. Section 67(1) Evidence Act requires 'reasonable notice' to be given by the party seeking to adduce the evidence the subject of the present application. No issue is taken with the date upon which this application was foreshadowed. There is no dispute that Ms Clare's lawyers were unaware that Mr Morley's second interview had been excluded until the evening before trial; as my judgment had been restricted.
3. This proposed evidence will be led during the prosecution case. The proposed evidence has relevance to facts in issue: s 55 Evidence Act. The evidence is hearsay. The exception to the hearsay ruled on relied on here is in s 65(8) Evidence Act.
4. Section 65 (1) Evidence Act requires the maker be "unavailable:" Clause 4(1)(g) of the Dictionary to the Evidence Act provides that persons are unavailable where the party seeking to prove same has taken all relevant steps to compel the person to give the evidence, but without success.
5. Section 12 Evidence Act assumes all persons are competent to give evidence, and all competent persons are compellable.
6. Section 17(2) Evidence Act provides that Mr Morley, as a defendant is not competent to give evidence for the prosecution. Section 17(3) Evidence Act provides that he is not compellable to give evidence on behalf of Ms Clare, as they are being tried together.
7. Mr Morley does not challenge the proposition that he is unavailable to give the evidence. Ms Akthar advises that he does not propose to give the evidence. He cannot be compelled to do so. No application for separate trial was made.
8. Generally in a prosecution case the evidence of an admission by one accused would not be admissible against another unless relied on as exception in s 81 (s 87 not applying) and Ms Clare consented. And, if she did, all of the admission would go in; s 83. I note that section 83 is the exception generally relied on where Accused 2 wants to use Accused 1's representation in her own trial.
9. But s 65(8) provides that: "The hearsay rule does not apply to - (a) evidence of a previous representation adduced by a defendant if the evidence is given by a person who saw, heard or otherwise perceived the representation being made, or (b) a document tendered as evidence by a defendant so far as it contains a previous representation, or another representation to which it is reasonably necessary to refer in order to understand the representation."
10. One purpose of the provision was to allow confessions of third parties to be led by the defence: Australian Law Reform Commission, Interim Report ALRC 26 Vol 1 at [692]; S Odgers Uniform Evidence Law 15 ed. Thompson Rueters, at [65.300]; Hague v R [2019] VSCA 218 at [220].
11. As Justice N Adams J has noted: "Admissibility under s 65(8) of the Evidence Act differs in several respects to admissibility under s 65(2) of the Evidence Act. For example, there is no need to satisfy the additional requirements set out in s 65 (2) (a)-(d) nor, in relation to s 65(2)(d), to consider each representation relied upon separately, as held by the High Court in Sio v The Queen (2016) 259 CLR 47; [2016] HCA 32.;" R v Davis (no 6) [2020] NSWSC 1888 at [52]."
12. That does not mean however that discretionary exclusion is not possible: R v O'Connor [2003] NSWCCA 335 at [12]-[13]; R v Davis (no 6) at [48] to [60].
13. R v Rahme [2001] NSWCCA 414 is an example of a mistrial where in cross-examination Accused 2' put evidence before the jury of an admission by Accused 1, previously excluded.
14. In succinct and helpful written submissions Ms Mitchell, for Ms Clare, specifically addressed issues raised by s 138 Evidence Act. She said: 1. The impropriety is not particularly significant when the evidence is not to be adduced against Mr Morley. 2. The jury can be given clear and specific directions about the way they may use the evidence in their deliberations. 3. Any impropriety was reckless on the part of the Police. 4. There is no other way in which the representation can be adduced or any other means of obtaining the evidence.

Consideration

1. In the passage of his excluded interview Mr Morley made the following admissions/representations: 1. He doesn't have a bank account. 2. He asked Tara [Clare] if he could put money in hers. 3. She did not know what it was for. 4. He said it doesn't matter. As it would be taken out straight away. 5. She took the money out and gave it to him.
2. Proposition 3 is relied on as exculpatory. As far as I can ascertain propositions 4 and 5 others are consistent with evidence that has already been or will be led in the prosecution case. I have no inkling as to the evidence or relevance of proposition 1.
3. As far I can ascertain, from submissions and how Ms Clare's case was put to Mr Merrett in cross-examination, the following points will be made:. 1. Ms Clare asked Mr Morley if he could use her Pay ID because he didn't have a bank account? 2. He asked her if she'd be able to go and get the money out once it was transferred? TT 168 & 169.
4. Ms Clare's case was not opened to the jury. It appears to me that her case is that while she was present at the drug deal with Mr Morley and the first alleged victim she was not involved in the alleged in the detention the subject of the alleged joint criminal enterprise. She will be asking the jury to reject evidence she was present when demands were made of the alleged victims and when they were assaulted. She will ask the jury to reject evidence she was present when they were forced into the storage area at the back of the house. She will ask the jury to reject evidence that she provided them with food and drink while they were locked in that place as part of her involvement in the alleged joint criminal enterprise.
5. Ms Clare, as I understand it, will ask the jury to have a reasonable doubt as to whether she played any role in any interaction between the men at the house and the alleged victims. That is regardless of whether that discussion involved innocent commercial negotiations about who would bear the loss caused by the rip off, at which she was present, and how the reimbursement for losses was being organised. That is; whether that payment was induced by assaults, threats and detention or as a commercial arrangement without such pressures. Further, she will ask the jury to not reject an alternative possibility that while she did get food and drink that morning, this was not rations for their prisoners but breakfast food to be shared by all.
6. Her case then is that, in ignorance of any interactions between the men and in ignorance of what the money was for, as a favour to Morley, who had no bank account, she allowed money to be deposited in her account and then withdrew that money.
7. The proposed hearsay, she says, is important, because it adds an important component critical to her defence; her state of mind - she did not know what the transfer was for. She wants to put to the jury that what Mr Morley told police can be accepted and used by them as evidence that she had no idea the transfer related to whatever was going on in that small flat that morning. It will thus help raise doubts in the minds of the jury about whether it can be proved beyond reasonable doubt that she was a party to any agreement or joint criminal enterprise.

Section 136

1. A court can limit evidence in a joint trial to the trial of one accused only. This is commonly done when one accused makes admissions that cannot be attributed to others.
2. Jurors are presumed to be capable of obeying judicial directions and effectively quarantining such evidence. But here, the passage sought to be led requires context. It would be unfair to the Crown, not to allow them to lead more of the second interview than the passage relied on by Ms Clare.
3. That context would reveal possible lies told in consciousness of guilty by Mr Morley. There is a real risk that a juror might infer that Mr Morley was admitting the purpose of the transfer was unlawful; otherwise why would he tell the police he had kept Ms Morley in the dark about the transaction by saying "she didn't know what it was for." That is, he had hidden something from her! If it was a lawful settlement of even a drug debt, there was no reason to keep that fact from her.
4. Given how this case has been run and given Mr Morley will in all likelihood not be giving evidence, it would be practically possible to confine the proposed evidence to only Ms Clare's trial.
5. While technically each accused trial is separate, that determination requires, in fairness to Mr Morley, consideration of sections 135 and s135 Evidence Act. Both sections in turn require an assessment of the probative value of the proposed evidence.

Probative value

1. R v O'Connor [2003] NSWCCA 335 is an example of case where it was held that prejudice outweighed the probative value of apparently exculpatory evidence given by hearsay representations of a co-accused. In dismissing the appeal, it was accepted that, while prima facie admissible, the representation made by and about a partner of long standing was likely to have been falsely made in order to protect her. The Court, applying s 135, held that the evidence was less worthy of belief than might first have appeared.
2. O'Connor was decided before IMM v The Queen [2016] 257 CL& 300; [2016] HCA 14 - [44] & [45]. There the High Court held that: 1. The use of the term "probative value" rests upon the premise that relevant evidence can rationally affect the assessment of the probability of the existence of a fact in issue to different degrees. 2. That assessment requires that the possible use to which the evidence might be put, be taken at its highest. 3. The definition must be read in the context of the provision to which it is applied as the ways in which evidence, if accepted, could affect the assessment of the probability of the existence of a fact in issue are various. 4. On the assumption that the evidence is accepted, the determination of probative value is a matter for the judge: At [44] & [45].
3. The Court then noted: "It must also be understood that the basis upon which a trial judge proceeds, that the jury will accept the evidence taken at its highest, does not distort a finding as to the real probative value of the evidence. The circumstances surrounding the evidence may indicate that its highest level is not very high at all. ,….example of the correct approach re identification, evidence were in context the evidence can be " but a weak one because it is simply unconvincing." At [50].
4. In IMM it was assumed the evidence would be tendered before the commencement of evidence in the trial, and thus the full picture can be seen. Here however, the trial has been going some days. As the second victim accepted Ms Clare was "in and out of the room" when the bank transfers occurred there is thus some evidence enabling a submission that She may not have been present and thus did not know what the transfer was for.
5. Nothing in the proposed evidence that goes to an exculpatory fact that Morley would have known rather than surmised. Generally if a person seeks to give evidence of what was in another's mind it, if objected to, would be rejected as one cannot as a matter of logic say what another was thinking. At best it can be said to be an expression of the witness's personal opinion. And such opinion evidence is inadmissible: s79 Evidence Act.
6. Technically neither the hearsay rule nor the opinion rules apply to an admission: s81 Evidence Act. It is arguable that if admitted only in Ms Clare's case Mr Morley's assertion would be not regarded as an admission. But even putting that rule to one side; where a person known to be involved in an enterprise, said to be criminal, seeks to exculpate another unless what they said had independent support it would have little or no evidentiary value.
7. Those general and logical propositions reduce the weight of any representation, let alone an opinion, given by Morley. Further, in the representation sought to be led he advances no basis or foundation for why he says she did not know what the transfer was for.
8. Taken at its highest the probative value of the prosed evidence is slight. Ms Mitchell's submission that the evidence has high probative value must be rejected. At best, if admitted, the evidence might allow Ms Mitchell to submit that Ms Clare allowed her bank account to be used in ignorance of the joint criminal enterprise alleged by the prosecution or that the source of the money was the second alleged victim. But whilst that suggestion could be made, given the circumstances surrounding the proposed evidence, its highest level is not very high at all. In the context of the point we have reached in the trial and where that trial will go, it could have no impact at all.

Section 135

1. Section 135(a) of the Evidence Act provides relevantly that: The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might-- be unfairly prejudicial to a party,
2. Even if it were capable of having greater probative value than I have assigned it the proposed evidence could not outweigh the prejudice that would inevitably flow to Ms Morley even if I limited the evidence and refused the prosecution leave to call additional evidence to rebut the underlying presumption said to give weight to the evidence. In a joint trial the proposed evidence will inevitably lead to speculation about what else was said by Morley and why the jury don't have it. In so saying, I do not believe it would be fair to the Crown to refuse them leave to call additional evidence to give the extract context. To refuse such permission would be unfair to them and distort the value of the evidence.
3. The proposed evidence has strong potential for prejudice as it will put a co-accused's admissions before the jury. A direction to ignore that evidence in the case against him could not correct that prejudice. Here the probative value of the proposed evidence is so slight, that any danger it would unfairly prejudice the trial of a co-accused, requires I refuse to admit it.

Section 138

1. I have already determined that the evidence the subject of this application that was obtained improperly. That impropriety had nothing to with Ms Clare. In a trial a court can revisit any evidentiary ruling if circumstances change. That ruling not now challenged so that the evidence can be used during the joint trial but only in Ms Clare's defence. Impropriety having been found I must ask the question:
2. Does the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained: s138 (1).
3. And when I doing so consider the matters set out in s 138 (3): (a) the probative value of the evidence, and (b) the importance of the evidence in the proceeding, and (c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and (d) the gravity of the impropriety or contravention, and (e) whether the impropriety or contravention was deliberate or reckless, and (f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights , and (g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and (h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.
4. While perceived to be important by Ms Clare, the assertion by Mr Morley has limited probative value and would be of importance to a jury properly instructed and acting rationally. The evidence was excluded because it was unlawfully obtained and Morley was denied his Law (Enforcement Powers and Responsibility) Act 2000 rights. Nothing has been put before me that could not justify its admission in a joint trial requiring revisiting my earlier order.
5. I accept that s 65(8) Evidence Act is beneficial provision for an accused enacted to overcome the unfairness which would exist if an accused were unable to rely on a relevant and possibly exculpatory representation made by a co-accused, but s138 provides an even stronger basis for rejection than s 135 Evidence Act.

Orders

1. I will not reverse my earlier ruling. I will not allow the proposed evidence to be led in Ms Clare's trial.

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