R v Cox & Sadler

"At 9.02 p.m. the Ford Festiva driven by Cheung re-entered the car park from Blackburn Road parking in the eastern end of the car park again and followed by a 1980s model white two-door hatchback sports car, registration NTD-400, that had been identified moments earlier in Blackburn Road when Cheung put a package in the rear of the car. This vehicle now identified as a Mitsubishi coupé then parked in the western end of the car park and I observed an Asian male who I now know to be Enrique Uanuane Agbayani in the driver's seat. Agbayani then alighted from this vehicle and opened the bonnet of the Mitsubishi coupé removing the dip-stick. Agbayani stood at the front of the Mitsubishi coupé frequently looking around the car park before returning to the driver's seat. A short time later I observed an Asian male alight from the passenger seat of the Ford Festiva and walk to the Mitsubishi coupé where he seated himself in the front passenger seat. Agbayani then handed this male a brown paper bag where the Asian male looked at the contents before handing same back to Agbayani. The Asian male then alighted from the Mitsubishi coupé and walked towards the shops."

11 The report of Mr Cox on Operation Lulie at para.16 is to the same effect. It is common ground that the admissibility of that report depends on the resolution of the question of the admissibility of the statements to which I have just referred.

12 The Crown seeks to rely on the passage of the statement of Mr Cox, which I have quoted, as an admission by Cox of his observations of Agbayani's vehicle that evening. Similarly, it seeks to rely on the like passage in Sadler's statement as an admission by Sadler of his observation of Agbayani's vehicle.

13 Mr Young accepted that that part of Mr Cox's statement is capable of constituting an admission by Cox; however, he submitted that I should rule that the statement is inadmissible in the exercise of my discretion. On the other hand, Mr Georgiou, who appears with Ms Spowart for Mr Sadler, submitted that the statement is not an admission and therefore is inadmissible as hearsay. He also adopted Mr Young's submissions that, in any event, the statement of Mr Sadler should be excluded in the exercise of my discretion.

14 On the question whether the statements made in the witness statements were admissions, Mr Georgiou submitted that an out-of-court statement by an accused could only be characterised as an admission if it related to a "key fact" in the Crown case. He submitted that proof of the facts contained in Sadler's statement would not establish Sadler's guilt, nor would it exclude as a reasonable hypothesis that Duy Le was able to, and did, remove some of the heroin which had been brought to the car park by Cheung.

15 Mr Georgiou relied on the dictum of Coldrey J as a member of the Court of Criminal Appeal in R v Hazim[1] where His Honour stated:

"The accepted distinction between confessions and admissions is that the former involve admissions of actual guilt whereas the latter relate to certain key facts which tend to prove the guilt of the accused of such a crime."

16 It is commonly understood that a confession is an admission of guilt and by contrast an admission is a statement by an accused as to a relevant fact in issue in a proceeding. In this case a relevant issue is whether Duy Le did appropriate some of the heroin in the package which was in Agbayani's vehicle. One fact which is relevant to that issue is whether Duy Le had the opportunity to appropriate the heroin. In that context the question whether Agbayani left him alone and unobserved in the vehicle is a relevant factual issue between the parties.

17 It is correct, as Mr Georgiou contends, that proof by the Crown that Duy Le was not left alone in the vehicle would not necessarily exclude the possibility that, nonetheless, Duy Le did appropriate some of the heroin from the package in Agbayani's vehicle. However, proof of that fact would tend to preclude one possible hypothesis of circumstances in which he had the opportunity to do so. Thus the observations by Cox and Sadler contained in their statements in 1999 do relate to a relevant issue in the case. The statement out of court by each of them is, in my view, capable of constituting an admission by each respectively as to his observations of what occurred in and about Agbayani's vehicle shortly before the arrest of Agbayani and Cheung on the evening of 2 August 1999.

18 It was also contended in the course of submissions that I should not admit the statements because they contradict important aspects of the evidence of Agbayani who was called as a witness by the Crown. It was not clear to me whether this contention constituted a discrete basis for excluding the evidence or whether it was one of the matters on which I should take into account in the exercise of my discretion.

19 During his submissions Mr Young suggested that the Crown was seeking to undermine the credit of Agbayani and that that reflected on what he termed the appropriateness of the Crown tendering the statements of Cox and Sadler for that purpose. Mr Georgiou submitted that by tendering the statements, the Crown was seeking to support the evidence of Duy Le in contradiction to that of Agbayani.

20 It is, of course, trite law that a party who calls a witness is not entitled to impeach the credit of that witness whether by questions asked of that witness or by evidence led from other witnesses. However, that rule does not prohibit a party from calling witnesses who contradict each other and from inviting the court to believe one witness rather than the other. This proposition has been long established in the law. In an often cited passage in Ewer v Ambrose,[2] Holroyd J, as a member of the Kings Bench Division, stated:

"If a witness proves a case against the party calling him, the latter may show the truth by other witnesses, but it is undoubtedly true that if a party calls a witness to prove a fact, he cannot, when he finds the witness proves the contrary, give general evidence to show that the witness is not to be believed on his oath, but he may show by other evidence that he is mistaken as to the fact which he is called to prove."

21 Thus it has been held that the Crown is entitled to call witnesses who are mutually inconsistent or contradictory and to seek to establish by other evidence and/or by submission which witness should be accepted by the jury. In R v Welden,[3] Bright J, as a member of the Full Court of the Supreme Court of South Australia, stated:

"It is clear that a party having called a witness as to a fact is not entitled to call another witness to discredit the first witness but that rule does not prevent a party from calling two witnesses who give inconsistent accounts of a series of events or even of a fact, nor does it prevent that party from submitting that the court should prefer the account of one witness to that of the other." (See also p.427 in the judgment of Bray CJ and at 442 per Zelling J; R v Goncalves (1997) 99 A Crim R 193 at 216; Barker v Charlie (1962) 62 SR (NSW) 296 at 303-4; Leotta v Public Transport Commission (1976) 50 ALJR 666 at 669 per Murphy J.)

22 The requirement that the Crown, in the interests of justice, call all relevant witnesses, unless there are cogent identifiable circumstances justifying that it not do so, is well established. (See Apostilides v R.[4]) That principle, not uncommonly, persuades the Crown to call witnesses on whom it does not rely or whose evidence is inconsistent with parts of the Crown case. The operation of that important principle logically and sensibly cannot bind the Crown to accept all the evidence it calls, nor to refrain from supporting some evidence in preference to the other evidence.

23 For those reasons I reject the submission that the Crown is not entitled to adduce and rely on the evidence of the two statements of Cox and Sadler on the basis that they are inconsistent with aspects of the evidence of Agbayani.

24 I next consider the question of the discretion. It was submitted on behalf of both accused that I should exclude both statements and the Operation Lulie report from evidence in the exercise of my discretion. The main submissions in this respect were made by Mr Young, who was supported by Mr Georgiou.

25 Mr Young's principal submission focused on the weight or probative value of the admissions contained in the statements of his client. He submitted that the admissions were inherently of little weight because, when properly analysed, his client could not have accurately made the principal observations of Agbayani's vehicle which are contained in his statement. Mr Young contended that the statement would be accorded excessive weight by the jury because it was signed as true and correct by Mr Cox with the usual acknowledgement that he made the statement in the belief that a person making a false statement in the circumstances is liable to the penalties of perjury. Mr Young further submitted that if the statement was tendered, the admissions contained in it would be untested by cross-examination as to their accuracy and reliability. He argued that the admissions reinforced the evidence of Duy Le in preference to the evidence of Agbayani as to what occurred in Agbayani's vehicle. They relate to an important part of the case. Mr Young contended that if the admissions were tendered, they would place the accused in the invidious position of having to disown his own admissions. He submitted that the tender of the document would thus cast an unfair onus on the accused.

26 Mr Tovey of Queen's Counsel, who appears with Mr Brown for the Crown, submitted that there was nothing unfair about the tender of the statements. They were each made a little more than one month after the incident by experienced policemen who had ample opportunity to give their statements careful consideration. The statements were made in respect of serious criminal charges against Cheung and Agbayani and therefore it would be expected that the accused had taken care to ensure that their statements reflected their true observations of what occurred on 2 August. Further, he submitted that the assessment of the weight of the admissions is quintessentially a matter for the jury and not for the trial judge. He submitted that the tender of the admissions did not operate in any way unfairly to the accused. In any criminal trial where the Crown relies on admissions, an accused may be placed in the position of needing to provide an explanation for that admission. Such a process does not distort or reverse the onus of proof which throughout remains on the Crown.

27 In my view, the starting point for consideration of this issue is that the evidence which the Crown wishes to tender does relate to a matter which has been placed in issue between the parties. It is thus clearly relevant to the trial. There is, of course, no suggestion that the evidence was unfairly obtained. Nor, in my view, is there force in Mr Young's contention that it would be introduced unfairly because it could not, on its admission into evidence, be tested in cross-examination. All admissions are untested in that sense. Mr Young contrasted the tender of a statement with the tender of a record of interview where the person conducting the record of interview can be cross-examined. However, where admissions are made by an accused in the course of a record of interview, cross-examination of the interviewer, not uncommonly, is of limited value where it is sought to impugn matters such as the accuracy and truth of observations which are the subject of admissions. In this case, if the admissions had been made in a record of interview, it is debatable whether cross-examination of the interviewer would have been of value in qualifying the accuracy or truth of the admissions which the Crown seeks now to tender. In any event, I do not consider it unfair to the accused that the admissions were contained in a statement and were not liable to be tested in the sense contended for by Mr Young.

28 Furthermore, I agree with Mr Tovey's response to Mr Young's argument that the tender of his client's statement would invert or distort the onus of proof. In any criminal trial evidence is led by the Crown, whether from witnesses or by proof of confessions or admissions or the like, which an accused may need to rebut, contradict, qualify or explain. That process does not distort the onus of proof; it is nothing more than the proper functioning of the adversarial system throughout which the ultimate onus of proof remains on the Crown. The tender of the statements in this case would not alter or reverse that onus at all.

29 The principal submission by both accused is that there are inherent weaknesses in the probative value of the admissions which the Crown seeks to tender. In analysing that submission it is necessary to consider the admissions in a little detail. It seems to me that there are two main aspects of the admissions which are important to the issues relating to the Burwood Kmart car park bust. The first aspect concerns the question at what precise point was Agbayani out of his vehicle. The second aspect is whether Agbayani handed the bag containing the heroin to Duy Le or whether Duy Le himself located it under the seat of the vehicle.

30 The first aspect is relevant to the question whether Duy Le had an opportunity to extract some of the heroin from the package in the car. The second aspect is relevant to whether, as alleged by Duy Le, Agbayani was sufficiently familiar with the contents of the package to be able to point out to Duy Le the difference between the better quality heroin and the average quality heroin contained in the package. On the first aspect, in his evidence-in-chief Duy Le stated that as he approached Agbayani's vehicle, he was not sure whether Agbayani had his bonnet open. In cross-examination he agreed that at the Ferguson trial last year he stated that it was while he was in the car that Agbayani got out of the car and did something to the bonnet. On the second aspect Duy Le stated in evidence in this trial that when he entered Agbayani's car, Agbayani showed him where the heroin was, opened the bag, showed him the contents and showed him how to differentiate between the better and the average quality heroin.

31 Agbayani's evidence was different from Duy Le's on both of those aspects. He stated that after Duy Le entered his vehicle, Cheung rang and told Duy Le where the bag was. When Duy Le brought out the bag, Agbayani realised a drug deal was going on; he therefore panicked, alighted from the vehicle and opened his bonnet.

32 The statements which the Crown seek to tender support Duy Le and not Agbayani on both of those two aspects. The question is whether there is some inherent unreliability in the admissions relied on which deprives them of most of their probative value on those two aspects or, alternatively, whether the statements are inherently unreliable in a manner which might not be properly understood by the jury.

33 There is nothing in the statements or the evidence so far led in the trial which would indicate that the police could not have accurately observed the stage at which Agbayani lifted the bonnet to his vehicle. Certainly on the face of the statements I would have reservations as to whether the accused could have accurately seen Agbayani hand Duy Le the package while he was in the vehicle. However, there is nothing in the statements or in the evidence which would render the admissions of the accused as to their observations of that fact of so little probative value that it should be excluded in the exercise of my discretion. The assessment of the weight of such an admission is just as much a matter for the jury as is the assessment by the jury of any other piece of evidence placed before it. There is nothing about the admissions which manifestly so deprives them of probative value as to justify their exclusion by me on that basis. Nor, in my view, can it be said that any potential limitations, errors or weaknesses in the observations, which are the subject of the admissions, are such that they could not be properly understood by the jury. There is nothing complex or arcane about the type of factual issues involved in the assessment of the weight of those admissions. The type of issues which might need to be considered by the jury in determining the weight of the admissions are issues which are commonly evaluated by juries.

34 For those reasons I reject the application by both accused to exclude the whole of the statements made by them from admission into evidence.

35 It was alternatively submitted by Mr Young that, in any event, some parts of the statements should be excluded. He pointed to three aspects of the statement of Mr Cox. In the course of argument the Crown agreed to exclude two of them, leaving just one for my determination.

36 Each of the statements recorded that after Agbayani was arrested, Mr Cox then spoke to him in the presence of Mr Sadler. The statement then records that Cox said to Agbayani: "Where's the heroin?" to which Agbayani replied: "It's behind the seat in a paper bag."

37 Mr Young objected to the admission into evidence of that part of the statement on the grounds it was not relevant. Mr Tovey responded that that evidence is relevant because it demonstrates that Agbayani did know at that stage where the heroin was. I also raised the question whether the statement by Agbayani that the heroin was behind the seat was hearsay. Mr Tovey's response was that the evidence was not sought to be adduced to prove the truth of the statement of Agbayani, that is, that the heroin was behind the seat, but, rather, to prove that Agbayani knew that the heroin was behind the seat.

38 Initially I was inclined of the view that the evidence as to what Agbayani told the accused might be hearsay. However, on a proper analysis, I do not consider that the evidence of what Agbayani told the accused as to the location of the bag is hearsay. The issue in this case is not whether the heroin found by the police was in a paper bag behind the seat. One issue is whether Agbayani knew where the heroin was located when he was arrested. His statement to the police is evidence of that knowledge. It is not sought to be tendered to prove the truth of the statement of Agbayani but rather to prove his state of knowledge. For that purpose, it is not, in my view, sought to be tendered as hearsay. (Cf Walton v R.[5]) Thus the proof of that fact by way of evidence of admission of the accused does not involve proof of an admission as to acts of another of which the accused did not have knowledge. (Cf Surajpaul v R;[6] Director of Public Prosecutions v Parsons.[7])

39 I therefore hold that that section of each statement is inadmissible in evidence.

40 In this regard I do note that Agbayani has already given his evidence. He did say that he did not know there were drugs in the car until Duy Le extracted the bag from under the seat and that the police did not show him anything after his arrest. He was not, however, specifically asked whether he pointed out to the police the heroin in the car as described in the passage in the two statements to which I have just referred. Accordingly, if either accused desires to cross-examine Mr Agbayani on that matter, I would permit him to be recalled for cross-examination in relation to that matter.

41 For the purposes of completeness, I should record that in the course of argument the Crown agreed with the submission of Mr Young to exclude two parts of the statement of Mr Cox which are identical to parts contained in Mr Sadler's statement. Using Mr Cox's statement as a guide, those parts are, first, on p.1, the last paragraph, it has been agreed that the phrase contained in the third and fourth lines " ... that had been identified moments earlier in Blackburn Road when Cheung put a package in the rear of the car" be excluded. Secondly, it has been agreed to exclude the section of Mr Cox's statement on p.2 where he referred to "a search of the immediate area to locate the third Asian male proved fruitless".

42 I turn briefly to the Operation Lulie report. The Crown sought to tender that report as an admission by Mr Cox. Mr Young principally objected to para.16 of the report. He did accept, as I have already stated, that the admissibility of that paragraph depended on the admissibility of the statement of Mr Cox. As I have upheld the admissibility of the statement, it follows that para.16 is admissible.

43 Mr Young also raised issues concerning para.13 of the report relating to what he says are errors in dates recorded in the first sentence of that paragraph. Mr Tovey has agreed that on tendering the report, he will inform the jury that the Crown does not dispute that the dates are incorrect and that the dates should be referred to as 30 July 1999 and Tuesday 27 July. On that basis Mr Young did not contend that para.13, or part of it, should be excluded.

44 Mr Young also objected to the second sentence in para.18 of the report and the Crown has agreed to have that sentence excluded.

45 In conclusion, I hold that the two statements of Mr Cox and Mr Sadler and the Operation Lulie final report are admissible in evidence subject to the exclusions from them which I have referred to and which were referred to in the course of argument.

[1] (1993) 69 A Crim R 371 at 380.

[2] (1825) 3 Barnwell and Cresswell Reports 746-750; 107 English Reports 910 at 911-912.

[3] (1977) 16 SASR 421 at 435.

[4] [1984] HCA 38; (1984) 154 CLR 563 at 576.

[5] [1989] HCA 9; (1989) 166 CLR 283 at 300 and 302.

[6] [1958] 1 WLR 1050 at 1056.

[7] [1993] 1 VR 185.