"92 It was next submitted that only so much of Sakisi's ERISP as could be regarded as a statement against his own interests could be admissible under s65(2), it being contended, for example, that a representation to the effect that the appellant " gave me instructions to arrange the bashing.." could not be so regarded. His Honour accepted the first part of that proposition, but not the second, holding, correctly in my view, that any statement made by Sakisi, which tended to implicate himself in a joint criminal enterprise with the appellant, would qualify. I so find because this is the classic definition of a statement against interest, as reproduced in s65(7) of the Act.
93 An argument was also advanced that each question and answer should be considered separately, and that, unless standing alone, it amounted to a representation against interest, it did not qualify for admission. In my view this involved altogether too narrow a proposition. I see no reason why the representations should not be considered in context, that is, in association with the other answers which, when read together, constitute an admission or answer against interest, that is, so far as they tended to prove that Sakisi had committed a crime.
94 It was also submitted that, in view of Sakisi's position as an accomplice, and the arrest of his girlfriend, such statements as he had made in the ERISP may have been self-serving, or intended to serve her interests. Upon that basis, it was argued that the representations could not be held with any certainty to be against his interests. His Honour rejected this argument, holding that despite any mixed motives which he may have held, any answer which tended to be incriminatory of him was one made against interest. Again, I am of the view that this aspect of his Honour's reasoning was correct, and that the argument to the contrary, repeated on appeal, has no basis. It similarly follows from the commonly accepted meaning of a statement against interest."
30 In the course of argument it was conceded by the Crown that there were substantial parts of Ms Kurdieh's induced statement which were not against interest or which involved answers which amounted to second hand hearsay. The Crown undertook to delete those matters from both the DVD and any transcript created as a result of the induced statement, which were to be placed before the jury. The fact that this process will need to take place does not preclude the defence taking specific objection to parts of the statement which are objectionable for reasons other than those addressed in these reasons.
31 The admissibility of Ms Kurdieh's ERISP was criticised in a general manner on the basis that the evidence was untested by cross-examination, she had in effect confessed to being a liar and she had an expectation of receiving a benefit if she made the induced statement. These matters do not go specifically to admissibility pursuant to s65(2). They are matters which are more properly taken into account when considering the application of sections of 135 and 137 of the Act. This appears to be the approach adopted in Suteski where Wood CJ at CL said:
"90 At first blush, it may seem unusual that there should be a difference between the position of a potential witness now unavailable, who had given evidence on an earlier occasion, and one whose earlier account had not been given on oath. Similarly it may seem unusual that, had Sakisi gone to trial with the appellant, then his ERISP, if tendered, could only have been received as evidence in the case against him.
91 Notwithstanding these considerations, if the ERISP answers the requirements of the section, the philosophy of which is to allow the use of specified categories of hearsay evidence, then, subject to the safeguards of notice and possible exclusion under s 135 or s 137 of the Act, I see no obstacle to its tender. In particular I see no reason to read into s 65(2) qualifications which appear in relation to other subsections, but which have been omitted from it."
32 It follows, subject to the application of sections 135 and 137 of the Act that I am satisfied that the representations in Ms Kurdieh's ERISP are admissible pursuant to s65(2)(d) of the Act.
33 Section 135 provides:
"135 The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:
(a) be unfairly prejudicial to a party, or
(b) be misleading or confusing, or
(c) cause or result in undue waste of time."
34 Section 137 provides:
"137 In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused."
35 In relation to s137 the classic statement of principle remains that of Sheller JA in R v Blick [2000] NSWCCA 61, (2000) 111 A Crim R 326 at [19 - 20]"
"19 When an application is made by a defendant pursuant to s137 to exclude evidence, the first thing the judge must undertake is the balancing process of its probative value against the danger of unfair prejudice to the defendant. It is probably correct to say that the product of that process is a judgment of the sort which, in terms of appellate review, is analogous to the exercise of a judicial discretion … even so … there seems to me to be a risk of error if a judge proceeds on the basis that he or she is being asked to exercise a discretion about whether or not otherwise admissible evidence should be rejected because of unfair prejudice to the defendant. The correct approach is to perform the weighing exercise mandated. If the probative value of the evidence adduced by the prosecutor is outweighed by the danger of unfair prejudice to the defendant, there is no residual discretion. The evidence must be rejected."
36 I have already found that the evidence sought to be adduced from Ms Kurdieh's ERISP is important in the Crown case. While there is other evidence to the same effect, much of that evidence comes from persons who are friends or relatives of the deceased. The probative value of the evidence, coming as it does from someone who was a friend of the accused, if accepted by the jury would be high.
37 In carrying out the other part of the weighing process, it needs to be kept in mind that the concept of "unfair prejudice" does not mean "damaging to the accused" but refers to circumstances where "there is a real risk that the evidence will be misused by the jury in some unfair way" (Papakosmas v The Queen (1999) 196 CLR 297 at [91]).
38 I do not see the evidence in itself being "unfairly prejudicial" provided appropriate directions are given to the jury. Quite clearly a warning will have to be given as to the fact that the evidence has been untested by cross-examination. Similarly, the jury will need to be warned about the potential unreliability of the evidence because it was given in the expectation of obtaining a benefit and because the evidence itself constitutes an acknowledgement by Ms Kurdieh that she told lies on a previous occasion about the same subject matter. There would also need to be directions concerning the hearsay nature of the evidence and concerning the role played by Ms Kurdieh in what occurred. There is nothing novel in this. The content and effectiveness of such directions were considered in Suteski at [130 - 131].
39 I am satisfied that if appropriate directions are given, the probative value of the evidence is not outweighed by the danger of unfair prejudice to the accused.
40 Accordingly, I grant leave to the Crown to adduce as evidence portions of the induced statement of Ms Kurdieh recorded by the police on 16 February 2009. That leave is subject to the qualifications expressed in these reasons and to any further argument which might arise in relation to specific parts of the statement to which objection on another basis may be raised by the defence.