The applicant, James Crane, and six co-accused are charged with the murder of Clint Starkey at Gosford on 12 June 2017. The Crown case is summarised in an earlier judgment: R v Crane, James [2021] NSWSC 693. There I gave reasons for refusing an application by James Crane that he be tried separately from the co-accused, after the conclusion of their trial. Subsequent to that decision the date for commencement of the joint trial was deferred from 12 July 2021 to 19 July 2021, to accommodate the over-run of an earlier-listed, unrelated trial in which I presided. The commencement was deferred again because a jury panel could not be assembled under the restrictions of successive public-health orders. The trial is now listed for 23 May 2022.
James Crane applies under s 192A of the Evidence Act 1995 (NSW) for a ruling that he may tender in his defence hearsay evidence, namely, substantial parts of Simon Rodden's induced statement made on 13 June 2017. It is contended that that statement is admissible under s 65(8) as a document that contains a "previous representation" by Rodden. Rodden is said to be "not available" to be called by James Crane because he is a co-accused in the same trial and therefore not compellable: s 17(3). I have prepared these reasons on the assumption that the reader is familiar with the outline of the Crown case that appears in the earlier judgment. As in that judgment, I will refer to the four accused who are alleged to have carried out the lethal assault upon Clint Starkey collectively as "the assailants" and I will otherwise refer to all accused except the Crane brothers by surname only, for brevity.
The Crown's position on the evidentiary ruling now sought is as follows:
1. It argues affirmatively that Rodden's statement is admissible in James Crane's case, with citation of authority and reference to materials extrinsic to the Evidence Act in support of the proposition that the statutory definition of a witness who is "taken not to be available" extends to a non-compellable co-accused.
2. The Crown submits that Rodden's statement should only be received in James Crane's case to the extent that it contains first-hand hearsay; that is, assertions by Rodden of matters that he claims to have seen or heard directly. It submits that the statement contains second- or third-hand hearsay, being assertions of things Rodden claims to have learned from others, and that those parts of the statement should be excluded.
3. It is argued that the reception of the parts of Rodden's statement that James Crane is pressing should be conditional upon him also tendering other parts that are "necessary to properly understand the representations that [James Crane] proposes to adduce".
Thus the Crown does not oppose the tender of Rodden's statement. The combination of the Crown indicting the other accused jointly with James Crane and at the same time acquiescing in the tender of Rodden's statement creates considerable difficulty for the Court and for the co-accused.
The Crown could not tender Rodden's statement in its own case against any of the accused. Parts of it have a tendency to incriminate Rodden, other parts are self-serving. As the statement was induced by a promise from investigating police that "no information given will be used in any criminal proceedings" against the maker, it could not be tendered against Rodden. Parts of the statement tend to incriminate at least Colin Crane and the assailants. The statement could not be tendered by the Crown against those accused over their objection. Both Colin Crane and Symons have objected to at least some of the parts of Rodden's statement that James Crane wishes to tender and they have provided written submissions in support of their respective positions. Their objections are not made globally on the basis of any submission that Rodden does not qualify as an unavailable witness but rather on grounds of relevance, prejudice, second- and third-hand hearsay and that proffering of assumptions and unqualified opinions.
If, in the absence of objection by the Crown, I were to admit the statement in James Crane's case, the other accused would be exposed to a risk of prejudice. That would call for a strong direction to the jury that, in considering the Crown's respective cases against each of the other accused, the jury should disregard any parts of Rodden's statement that may appear adverse. The jury would have to be directed to treat those parts of Rodden's statement that tend to incriminate any of the other accused as evidence only in the case against James Crane.
Commonly, where the Crown does not object to evidence tendered by an accused, the Court would not intrude to reject that evidence upon a point of admissibility that the Crown has chosen not to rely upon. However, in this case the Crown opposed James Crane's application for a separate trial and I upheld the Crown's election to indict all accused together. In those circumstances, I cannot allow the Crown's acquiescence in the tender by James Crane of evidence that is potentially prejudicial to the others to dictate that the evidence be admitted. In the interests of a fair trial for the co-accused I must examine the admissibility of Rodden's statement, independently of the Crown's stance, according to my interpretation of the Evidence Act.
[2]
Applicable provisions of the Evidence Act
The sections of the Evidence Act relevant to the issue of admissibility of Rodden's statement are as follows (extracted so far as material for present purposes):
17 Competence and compellability: defendants in criminal proceedings
(1) This section applies only in a criminal proceeding.
(2) A defendant is not competent to give evidence as a witness for the prosecution.
(3) An associated defendant is not compellable to give evidence for or against a defendant in a criminal proceeding, unless the associated defendant is being tried separately from the defendant.
(4) If a witness is an associated defendant who is being tried jointly with the defendant in the proceeding, the court is to satisfy itself (if there is a jury, in the jury's absence) that the witness is aware of the effect of subsection (3).
Part 3.2 Hearsay
Division 1 The hearsay rule
59 The hearsay rule - exclusion of hearsay evidence
(1) Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.
(2) Such a fact is in this Part referred to as an asserted fact.
[…]
Division 2 "First-hand" hearsay
62 Restriction to "first-hand" hearsay
(1) A reference in this Division (other than in subsection (2)) to a previous representation is a reference to a previous representation that was made by a person who had personal knowledge of an asserted fact.
(2) A person has personal knowledge of the asserted fact if his or her knowledge of the fact was, or might reasonably be supposed to have been, based on something that the person saw, heard or otherwise perceived, other than a previous representation made by another person about the fact.
(3) For the purposes of section 66A, a person has personal knowledge of the asserted fact if it is a fact about the person's health, feelings, sensations, intention, knowledge or state of mind at the time the representation referred to in that section was made.
65 Exception: criminal proceedings if maker not available
(1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact.
[…]
(8) The hearsay rule does not apply to -
(a) […], 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.
Note -
Section 67 imposes notice requirements relating to this subsection.
(9) If evidence of a previous representation about a matter has been adduced by a defendant and has been admitted, the hearsay rule does not apply to evidence of another representation about the matter that -
(a) is adduced by another party, and
(b) is given by a person who saw, heard or otherwise perceived the other representation being made.
Note -
Clause 4 of Part 2 of the Dictionary is about the availability of persons.
67 Notice to be given
(1) Sections 63(2), 64(2) and 65(2), (3) and (8) do not apply to evidence adduced by a party unless that party has given reasonable notice in writing to each other party of the party's intention to adduce the evidence.
(2) Notices given under subsection (1) are to be given in accordance with any regulations or rules of court made for the purposes of this section.
(3) The notice must state -
(a) the particular provisions of this Division on which the party intends to rely in arguing that the hearsay rule does not apply to the evidence, and
(b) […].
[…]
Clause 4 of Pt 2 of the Dictionary in the Evidence Act makes the following provision with respect to unavailability:
4 Unavailability of persons
(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 section 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) all reasonable steps have been taken, by the party seeking to prove the person is not available, to find the person or secure his or her attendance, but without success, or
(g) all reasonable steps have been taken, by the party seeking to prove the person is not available, to compel the person to give the evidence, but without success.
(2) In all other cases the person is taken to be available to give evidence about the fact.
By force of s 59(1) of the Act, Rodden's statement is not admissible to prove the existence of the facts asserted in it unless James Crane can successfully invoke a statutory exception. He relies upon s 65(8)(b) and has served a notice under s 67 identifying the parts of the statement he wishes to adduce. The threshold question is whether Rodden is "not available" within the meaning of s 65(1). In that regard James Crane relies upon pars (e) and (g) of the Dictionary definition of unavailability.
[3]
Authorities cited by the Crown
For the purposes of s 17(3), Rodden is an "associated defendant" of James Crane because they have both been charged with the same offence arising out of the same circumstances. The Crown initially made the following submission as to why Rodden is "not available", for the purposes of s 65:
The Court has refused a separate trial application by the applicant […]. In the circumstances […] the Crown accepts that the applicant has taken "all reasonable steps" to secure Rodden's evidence in his trial or to be able to compel Rodden to give evidence in his case without success. Accordingly, the Crown accepts that Rodden is presently "unavailable", by the combined effect of Pt 2, cl 4(f) and/or (g) of the Dictionary to and s 17 of the Evidence Act; R v Davis & Quinn (No 6) [2020] NSWSC 1888 at [35], [47] and [50].
In R v Davis & Quinn (No 6) Mr Davis and Ms Quinn were tried jointly for murder. Ms Quinn had taken part in a recorded interview with police. The interview was admitted in evidence in the Crown case against her. During the trial Ms Quinn informed Mr Davis that she would not give evidence and Mr Davis then served notice on the Crown of intention to rely upon Ms Quinn's interview in his own case, under s 65(8). This was followed by Mr Davis giving evidence, at the conclusion of which his reliance upon Ms Quinn's interview was pressed. Paragraph (g) of the Dictionary definition of "not available" was relied upon in support of an argument that Ms Quinn was not available.
The Crown initially disputed that she was not available within the meaning of par (g) on the ground that not all reasonable steps had been taken because no subpoena had been served. Adams J questioned whether that or any other "reasonable step" was open to Mr Davis to compel Ms Quinn to give evidence, having regard to s 17(3): at [35]. Thereupon the Crown did not argue further against the engagement of par (g) but fell back upon a contention under s 135(a) that the probative value of the interview would be outweighed by prejudice to the Crown: at [35]-[42], [47] and [53]. Prejudice was said to flow from the Crown having been induced to believe, prior to Mr Davis giving evidence, that he no longer intended to rely upon Ms Quinn's interview. The prosecutor said that under that belief he had refrained from cross-examining Mr Davis about the interview. Her Honour rejected the contention: [54].
Because the Crown ultimately conceded in R v Davis & Quinn (No 6) that the co-accused was "not available", Adams J did not have the benefit of argument on the issue. Her Honour accepted the concession and determined the admissibility of Ms Quinn's interview on the Crown's preferred ground, namely, s 135(a). Adams J was not called upon to make, and did not make, a considered ruling on the question whether non-compellable status renders a person "not available" as a witness on the basis that, for the purposes of par (g) of the definition, the "reasonable step" of issuing a subpoena would be ineffectual. It follows that in the comparable circumstances of the present case the Crown is not bound by R v Davis & Quinn (No 6) to accept that Rodden is "not available" to be called by James Crane. Conceding the point on the basis of what occurred in R v Davis & Quinn (No 6) involves the prosecution unnecessarily binding itself by no greater authority than a concession made by another Crown counsel on a different occasion.
The Crown cited Abernethy & Hawkins v The Queen [2020] VSCA 96, wherein two co-accused had each made a statement to police concerning a charge of intentionally causing injury. Both statements were exculpatory of the maker and of the co-accused. The trial judge rejected the tender by each accused of the other's statement. The sole ground appeal, impugning this evidentiary ruling, was dismissed, primarily by reference to ss 81 and 83 of the Evidence Act 2008 (Vic), which are in the same terms as sections so numbered in the Evidence Act 1995 (NSW). Niall and Emerton JJA also considered s 65 of the Victorian Act, which is again in the same terms as the New South Wales provision.
Their Honours rejected a submission that, for the purposes of par (g) of the definition of "not available" in cl 4(21) of the Dictionary, "a party will demonstrate that 'all reasonable steps to compel the person' have been taken merely by demonstrating that the person who made the representation was the co-accused". The joint judgment continued as follows:
[91] […] An associated accused in a joint trial can therefore consent to giving evidence for or against the accused, provided the court is satisfied that the co-accused is aware [that he or she is not compellable: s 17(3)]. It follows that a co-accused being tried at the same time as the accused is not always "unavailable" as a witness for the accused for the purposes of s 65 of the Act.
[92] In order to meet the test for "unavailability" relied upon, the relevant applicant, in the circumstances of this case, would need to establish that they took all reasonable steps to compel the co-accused to give evidence, but without success. "Reasonable steps" might have included a request that the co-accused consent to giving evidence in the course of the joint trial. Provided the pre-conditions of s 17(4) were met [that is, that the accused has been made aware that he or she is not compellable], the co-accused would then have been available to give evidence for or against the applicant. Alternatively, or if the co-accused refused consent, the applicant could have applied to sever the trials and to compel the co-accused to give evidence pursuant to s 17(3) in the separate trial.
[93] In this case, no steps whatsoever were taken.
[94] We therefore reject the proposition that the statements were admissible in the trial of the co-accused pursuant to s 65(8) of the Evidence Act.
Their Honours' observations at [92] that par (g) applies to a non-compellable witness and that a request for the person to give evidence or an application for separate trial would constitute "reasonable steps […] to compel" are obiter dicta. Those observations were not necessary to the Court's decision on the appeal because, in connection with the trial, "no steps whatsoever were taken". In the absence of any steps by either appellant to compel his or her co-accused to give evidence, there did not arise either a question whether any particular actions would constitute "reasonable steps", or, more fundamentally, a question whether par (g) is engaged at all in relation to a non-compellable witness. Whilst the observations of Niall and Emerton JJA are entitled to the greatest respect and most careful consideration, they are not binding upon me and I am persuaded by other considerations discussed below that I should not adopt their Honours' dicta.
[4]
Construction of par (g) of the definition of "not available"
Paragraphs (a)-(g) of the cl 4 Dictionary definition are exhaustive of the circumstances in which a person may be "taken not to be available to give evidence about a fact": see cl 4(2). The enumerated circumstances are a mixture of factual and legal matters. Paragraphs (a), (c) and (f) are factual: death of the person, mental or physical inability of the person to give evidence and inability to find the person or to bring him or her before the Court despite reasonable steps having been taken. I consider that par (g) is also concerned with a factual matter. Lack of success in compelling a person to give evidence despite "all reasonable steps" would occur, for example, where a subpoena had been served but not obeyed and a bench warrant had been refused or could not be executed. It would also occur if the person attended in answer to a subpoena or under warrant but refused to be sworn or affirmed and/or refused to answer questions and would not purge the contempt.
In contrast, pars (b), (d) and (e) are concerned with rules of law that would prevent evidence being given by the person in question, notwithstanding his or her physical availability. Unavailability according to the definition in cl 4 of the Dictionary is the criterion for engagement of both s 63 (the exception for receiving evidence of previous representations in civil proceedings) and s 65 (the exception for previous representations tendered in criminal proceedings). In either a civil or a criminal case, where evidence is tendered of a person's previous representations, those paragraphs of the cl 4 definition that concern factual or physical unavailability, pars (a), (c), (f) and (g), are addressed to overcoming impediments to the adduction of evidence that are of a kind entirely different from the legal impediments in pars (b), (d) and (e): witness incompetence, prohibition of the evidence under the general law and prohibition under the Evidence Act itself.
The distinct difference in character between the factual and legal circumstances, respectively, that make up the cl 4 definition of a person "not available" is significant for the construction of par (g). In relation to a non-compellable witness, such as a co-accused to whom s 17(3) applies, there could be no question of "all reasonable steps [having] been taken […] to compel the person to give the evidence", as provided for in par (g). No steps at all could be taken because s 17(3) prescribes that the person cannot be compelled. Paragraph (g) is concerned only with prospective witnesses in relation to whom it would be legally open to take steps to compel attendance. To treat legal non-compellability pursuant to s 17(3) as a basis for holding that the impossibility of compelling the person equates to "all reasonable steps [having] been taken" would involve mischaracterising legal immunity from compulsion as a factual circumstance of lack of success in compelling the witness. This would be a distortion of par (g). The wording of the paragraph is sufficiently clear to preclude this.
In par (b) of the cl 4 definition, legal incompetence, is specified as a circumstance of unavailability. In contrast, the legal status of non-compellability is not so specified. Having regard to the terms of par (b), if the legislature had intended to deem that non-compellable witnesses are to be "taken not to be available to give evidence" for the purposes of ss 63 and 65, a very straightforward paragraph to that effect would have been included in the cl 4 definition. Instead, par (g), which addresses the subject of compulsion, conveys a clear legislative intent that unavailability is deemed only where it is possible to attempt compulsion but the attempt is "without success". A person who is legally non-compellable, so that no reasonable steps can be taken to compel him or her, falls within "all other cases" in cl 4(2), so that the person is "taken to be available".
[5]
Extraneous materials referred to by the Crown
The Crown submits that pursuant to s 34 of the Interpretation Act 1987 (NSW) the Court should have regard to extrinsic materials to confirm that according to the "ordinary meaning" of cl 4(1)(g) a non-compellable co-accused is "not available" where an accused has made both a request that he give evidence and an application for separate trial, "without success". Alternatively, it is submitted that if par (g) is regarded by the Court as "ambiguous or obscure", then extrinsic materials should be considered in order to determine its meaning. I do not accept that either basis for considering extraneous materials is applicable here. I do not find that the ordinary meaning of par (g) to be as contended for by the Crown or that the provision is either ambiguous or obscure.
In any event, the extraneous materials cited by the Crown would provide no assistance in interpreting the provision even if reference to them were permissible. The Court has been referred to the Explanatory Memorandum that accompanied the Evidence Bill in 1994 and to Report 38 of the Australian Law Reform Commission in 1987. Both of these documents summarise and paraphrase provisions concerning witnesses who are taken to be "not available", including witnesses who "cannot be compelled to attend or give evidence" or who "cannot be compelled to give evidence after reasonable attempts". These paraphrases simply beg the question of whether the expression "cannot be compelled" is used in these extraneous documents is intended in a legal sense, as would apply to a co-accused by force of s 17(3), or only in a factual sense, as would apply to a witness who does not respond to legally available compulsive means. I gained no assistance from trying to interpret the extraneous material. The expression used within the material, upon which the Crown relies, is "cannot be compelled". That expression does not appear in par (g) of the statutory definition that I am endeavouring to interpret.
[6]
Supplementary submissions on behalf James Crane re par (g)
In supplementary written submissions counsel for James Crane argued that, if par (g) of the definition in cl 4(1) should be treated as only engaged where steps towards compulsion would be available and would have legal effect if taken, then this paragraph would have no useful field of operation because par (f), providing for the taking of all reasonable steps "to find the person or secure his or her attendance", would cover everything that could be reasonably done to compel the evidence to be given. That is not so. Paragraph (f) enables a party to demonstrate unavailability by showing that a prospective witness cannot even be found. Paragraph (g) goes further by providing that the party may still be able to adduce hearsay on the ground of unavailability if, although the witness can be located, he or she will not comply with the obligation to testify.
James Crane argues that an application for separate trial must be regarded as a reasonable step "taken […] to compel [Rodden] to give the evidence" and that, in the circumstances of this case, his earlier separate trial application constitutes "all reasonable steps" for the purposes of par (g). It is submitted that the earlier application was directed to securing a trial of James Crane in which Rodden would not be an "associated defendant" within s 17(3), so that he could be compelled. In my view par (g) must be applied to the circumstances of the proceeding in which the proposed hearsay evidence is to be given. In this case, that proceeding is a joint trial of James Crane, Rodden and others. I regard it as an artificial and unacceptable strain upon the language of par (g) to attempt to characterise an application to reconstitute the trial into a different proceeding as a step toward compelling the witness to give evidence in the trial that is in fact going to be conducted, pursuant to the Court's earlier ruling. I appreciate and have given due consideration to the contrary view expressed by Niall and Emerton JJA in Abernethy & Hawkins v The Queen at [92].
The application for separate trial was a substantive procedural application, determined according to principles that are informed by considerations of general significance to the administration of criminal justice: see Webb and Hay v The Queen (1994) 181 CLR 41 at 88-89; R v Annakin (1988) 37 A Crim R 131; R v Patsalis & Spathis [No 1] [1999] NSWSC 649; (1999) 107 A Crim R 432; and my earlier judgment at [3]-[6] and [22]-[29]. The decision that James Crane be tried jointly with his co-accused has been made to give effect to those significant principles. The continuance of the proceeding as a joint trial has the consequential effect that s 17(3) applies and Rodden is not compellable. The separate trial application cannot sensibly be regarded as a step towards compelling Rodden as a witness in a different proceeding - a trial of James Crane alone - that was applied for unsuccessfully and will not actually take place. Counsel for James Crane submitted that "contrivances of language" are involved in treating the separate trial application is falling outside the description of "reasonable steps […] to compel the person" to give evidence. I see the matter in quite the reverse light.
The following further submission was made against interpreting par (g) as inapplicable to a non-compellable co-accused in a joint trial:
[This] interpretation [of par (g)] has the effect of introducing, for an accused person, an additional hurdle beyond that which is faced by any other party who might wish to adduce hearsay evidence (in a civil or criminal context). That is, the initiating document of the proceedings (the presentment of which is controlled by the Crown, and which can only be severed in the discretion of the Court), can operate to preclude a party from adducing relevant evidence.
Such a limitation, operating only in relation to persons who are criminally accused, would represent an unmistakable incursion upon the fundamental right to a fair trial (and the agency [scil control] of an accused person over which evidence can be called in their trial). In the present case, it would prevent a person accused of murder from adducing evidence which is relevant and exculpatory.
In support of this submission James Crane cited Coco v The Queen (1984) 179 CLR 427 at 437 for the proposition that "the courts should not impute to the legislature an intention to interfere with fundamental rights". I do not consider that the principle has any application to the present question of interpretation of par (g). The non-compellability provided for in s 17(3) plainly has the object of protecting the co-accused, whose interests might be as much damaged if he or she could be compelled by another accused to give evidence as if the compulsion should be at the instance of the Crown. Where, by the clear terms of the statute, the legislature has precluded an accused from calling a co-accused in a joint trial, it cannot be said that there must be recognised a "fundamental right" to tender hearsay representations of the non-compellable witness. James Crane submits that inability to tender Rodden's hearsay statement, resulting from his status as a non-compellable co-accused who does not satisfy the statutory concept of unavailability, amounts to an "unmistakable incursion upon the fundamental right to a fair trial". That is a hyperbolic proposition and I cannot accept it. This is simply a rule of evidence delimiting the extent of an exception to the exclusion of hearsay.
[7]
Construction of par (e) of the definition of "not available"
In addition to his reliance on par (g) of the definition, James Crane submitted that par (e) is engaged; that is, "a provision of this Act prohibits the evidence being given". In support of this it was argued that by making Rodden non-compellable, s 17(3) "prohibits" him from giving evidence to the effect set out in his statement. That is not so. Rodden may give the evidence but, by force of s 17(3), he cannot be compelled to do so in this joint trial. This is a matter of the ordinary and natural meaning of par (e) of the cl 4(1) definition.
In supplementary written submissions counsel for James Crane endeavoured to qualify and refine his submission about the engagement of par (e). In writing it was conceded that, in advance of the commencement of the trial, the inability of James Crane to compel Rodden to give evidence does not amount to a prohibition on "the evidence being given" within the meaning of par (e). Counsel submitted that the position would be different during the course of the trial, as follows:
If Mr Rodden elects not to give evidence, s 17(3) of the Act will thereafter "prohibit" the evidence from being given. If, on the other hand, Mr Rodden chooses to give evidence, cl 4(1)(e) of the Dictionary will have no application. […] Put differently, it might be said that while Mr Rodden is not presently "prohibited" from giving evidence in the trial of James Crane, he will be if he doesn't wish to (due to the operation of s 17(3) of the Act).
I do not accept that submission. I do not regard it as coherent to speak of the Act prohibiting the giving of evidence upon the basis that the prospective witness, who is not compellable, elects not to testify. The following further submission was made:
[The Evidence Act is] designed to accommodate the adducing of hearsay evidence in circumstances where it can be shown that all reasonable steps have been taken to call "direct evidence" and, in the result, where such evidence cannot feasibly be adduced. The malleable operation of cl 4(1)(e) is consistent with that fact. In such a context, a narrow reading of the Dictionary definition of "unavailable persons" - so as to deny a person the right to adduce hearsay evidence in circumstances where they have plainly demonstrated that there is no feasible way to call the evidence directly - is to defeat the intended operation of the instrument as a whole.
Contrary to that submission, I am bound to give precedence to what I find to be the clear language of the sections over any perception of what they may be "designed to accommodate". On my reading, the object of the provisions is to facilitate the adducing of hearsay evidence where the statutory prerequisites are satisfied. I do not regard it as a "narrow reading" of cl (e) to recognise that it is not engaged by s 17(3), which merely makes a co-accused in a joint trial non-compellable but does not in any meaningful sense "prohibit" his evidence being given.
[8]
Determination
I conclude that no part of the statutory definition of "not available" is attracted by the circumstances pertaining to Rodden as a potential witness in James Crane's case in the joint trial. Section 65(8)(b) is therefore not engaged and I must refuse the ruling as to admissibility that James Crane seeks. It is not necessary for me to resolve the Crown's contention that parts of Rodden's statement are second- or third-hand hearsay, objectionable under s 62 of the Evidence Act or the further objection under s 135(a) and (b) that the probative value of some representations in the statement are outweighed by prejudice to the Crown and/or by a danger that those representations would mislead the jury.
Notwithstanding that the Crown opposed a separate trial of James Crane, knowing that this would leave him unable to compel Rodden to testify, the Crown's stance on the present application seems to be one of trying to facilitate James Crane to adduce evidence from Rodden, albeit in the seriously unsatisfactory form of partial tender of the statement and with detriment to the co-accused through the introduction of untested hearsay calling for warnings and directions to the jury. If the Crown wishes to enable James Crane to adduce evidence from Rodden, it lies within its power to change direction and indict James Crane separately, whereby any evidence Rodden can give may be brought out in oral testimony and cross-examined upon - a process far more likely to enable the jury to make sound findings of fact than if they are asked to take into account fragmented parts of an untested written statement. For reasons given in my earlier judgment, significant parts of the statement appear to be contradicted by objective evidence that the Crown will tender. Rodden's credibility is open to attack. Assuming that the Crown adheres to its election for a joint trial, which I have ruled is open to it, there are very sound reasons for excluding the partial introduction of the representations in Rodden's statement, by application of what I regard as the correct interpretation of the definition of unavailable witnesses, leading to the inapplicability of s 65(8).
For these reasons the Court's ruling is that the accused James Crane may not tender in his case any part of the statement of Simon Rodden made 13 July 2017.
[9]
Amendments
11 February 2022 - Restriction lifted on 11.2.22
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Decision last updated: 13 September 2022