Resolution of the Primary Issue
39As stated at [8] above, the primary issue on this application is whether the representations of Wade Hunter in his statement of 2 September 2011 were made in circumstances that make it likely that the representations are reliable. I move now to a determination of that issue.
40The focus of this question is the "circumstances" in which the representations were made. This concept was considered in R v Ambrosoli [2002] NSWCCA 386; 55 NSWLR 603 at 609-616 [15]-[37]. After reviewing the authorities at 615 [29], Mason P (RS Hulme and Simpson JJ agreeing) observed that:
"...it does not necessarily follow that evidence of events other than those of the making of the previous representation cannot throw light upon the circumstances of the making of that representation and its reliability as affected thereby. Events subsequent to the representation being made might do this, for example a (genuine) express retraction by the maker of the previous representation, or evidence indicating that the person who made the previous representation was incapable of having heard or seen the matter which was the subject of the previous representation.."
41Thus, the concept of "circumstances" is not a narrow one. In assessing the present question, I am entitled to consider evidence of matters having occurred before or after the making of the previous representations, so long as they are relevant to the circumstances in which the representations were made.
42The previous representations relied upon must be considered in context and as a whole: R v Suteski [2002] NSWCCA 509; 56 NSWLR 182 at 196 [93].
43The previous representations relied upon by the Crown fall into two categories. Firstly, they include representations about things Wade Hunter did and observed others doing. Secondly, they include things allegedly said to Wade Hunter by the Accused. The fact in issue in the proceedings to which these representations are said to go is the involvement of the Accused in the attack upon Jason Dixon that resulted in the latter's death. The evidence conveyed by the representations is clearly probative of that fact. The witness observed the Accused in possession of weapons and the bum bag. He also heard the Accused make significant admissions as to his involvement in a crime.
44The circumstances of the making of Wade Hunter's statement of 2 September 2011 include the following. He was in custody in relation to an unrelated matter and was apparently in an agitated state. His liberty was compromised and he had expressed a degree of desperation about obtaining bail. True it was that he attempted to bargain with police officers in this respect. There is also a suggestion he was affected by drugs at the relevant time. Further, I am required to take into account the fact that earlier statements made by him contradict the version he settled with on 2 September 2011. I also note that Wade Hunter was not formally cautioned in respect of the comments he was to make concerning the investigation into Jason Dixon's death and it has not been suggested by either counsel that he perceived himself to be a suspect in that investigation. Notwithstanding this, he clearly knew police could link him to the Accused's movements on 20 June 2011 through the use of his motor vehicle. I consider these to be the circumstances of the making of the previous representations relied upon by the Crown.
45The Crown concedes that there was at least a discussion between Detective Sergeant Lowe and the police prosecutor in respect of the Accused's bail application. The evidence of Detective Sergeant Lowe at the committal indicates that he advocated for the utility of Wade Hunter being released on bail, for the purpose of his assistance in the investigation then being undertaken into Jason Dixon's death. It remains, however, that no evidence has been furnished of any documentation that was provided to the presiding Magistrate in support of this.
46There is significant persuasive force in the fact that Wade Hunter not only recounted a version of events, but was also able to take police to locations were weapons were allegedly discarded by the Accused and Gary Hunter. Photographs of the relevant weapons in the locations disclosed by Wade Hunter were tendered on the application. This material bears on the circumstances in which the statement of Wade Hunter was made, being objective evidence obtained shortly prior to the statement of witnesses which corroborates a significant aspect of the version of events given.
47As regards the question of whether Wade Hunter was drug affected at times contemporaneous to the making of his statement on 2 September 2011, the available evidence is tenuous. The only material on which such an assessment could be made is a brief description, given by Ms Ellingsworth in her statement of 10 January 2012, of an incident during which Wade Hunter was said to be "on the drugs". This was said to have occurred "around ... 1 or 2 September". The lack of specificity as to when this occurred, exactly what Wade Hunter was affected by and the extent to which he was affected, render this evidence of little assistance. Moreover, Detective Sergeant Lowe's observations of Wade Hunter at the Mt Druitt Police Station on 2 September 2011 do not assist the Accused. His evidence was that Wade Hunter was in a distressed state. Had Detective Sergeant Lowe harboured a suspicion that Wade Hunter was affected by drugs at the relevant time, this would likely have been documented in his statement. Further, I accept the Crown's submission that a fair and full reading of Wade Hunter's statement of 2 September 2011 discloses a relatively coherent and lucid account of what took place.
48It was submitted by counsel for the Accused that Wade Hunter's prior inconsistent statements in this matter detrimentally affect the reliability of the representations relied upon by the Crown. In R v Ambrosoli at 616 [36], Mason P stated that evidence of prior statements can be a matter bearing on an assessment of the circumstances in which previous representations are made. However, his Honour continued (at 616 [36]):
"I would, however, emphasise that prior or later statements or conduct of the person making the previous representation are only to be considered to the extent that they touch the reliability of the circumstances of the making of that previous representation. If they do no more than tend to address the asserted fact or ultimate issue they have no bearing on the issues presented by s 65(2).
49I am satisfied that the earlier inconsistent statements of Wade Hunter of 21 June 2011 and 22 July 2011 go to more than simply addressing the asserted fact. They demonstrate a consciousness on the part of the witness to minimise his involvement in the activities, and a concerted effort to conceal crimes he suspected to have taken place. I do not, however, consider that prior inconsistent statements automatically render it unlikely that the statement of 2 September 2011, in the circumstances in which it was made, was reliable. It is not uncommon in criminal trials for witnesses to give a version of events, having resiled from an earlier account. Ordinarily, the witness would be cross-examined on the earlier inconsistencies. Whilst Wade Hunter is not available for cross-examination, that does not preclude the tendering of the earlier inconsistent statements, and submissions being made to the jury as to the credibility of Wade Hunter as a witness. Furthermore, as I have already stated, there is objective evidence regarding the location of weapons and the bum bag that heavily supports the version of events given on 2 September 2011.
50Further, I am not persuaded that Wade Hunter's criminal antecedents bear in any probative way upon the present application. The assessment I am required to undertake is not one of the credibility of the relevant witness. That remains the task of the jury: R v Sio [2013] NSWSC 1412 at [54]; referring to R v Cook [2004] NSWCCA 52 at [43]; R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228 at 236-237 [56]. The present question is whether the circumstances in which the representations were made render it likely that they are reliable.
51Counsel for the Accused did not articulate exactly how he relied on the witness' criminal record. It is difficult to see how a history of crimes of violence necessarily affects the circumstances in which Wade Hunter made his statement on 2 September 2011. That Wade Hunter knew he had a record and, thus, was potentially facing a serious sentence in respect of the matters for which he was in custody on 2 September 2011 may provide motivation for him to offer assistance to police - to obtain a more favourable outcome if and when he came to be sentenced for those matters. However, this, of itself, does not undermine the reliability of what he told police in providing assistance.
52The Crown has tendered on this application the evidence of Gary Hunter at the Accused's committal. This material is, in part, corroborative of the version of events given by Wade Hunter on 2 September 2011. Counsel for the Accused submitted that this was not material capable of bearing on an assessment of the circumstances in which the previous representations presently under consideration were made.
53I accept the Accused's submission on this aspect. In R v El Masri [2010] NSWSC 1277 at [22], Hoeben J (as his Honour then was) said the following:
"In support of the proposition that the representations were admissible, the Crown pointed to evidence from other witnesses which was corroborative of the representations. In that regard, I agree with the submission of the defence that evidence going only to the reliability of the asserted fact is not the sort of evidence contemplated by s 65(2)(d)(ii) of the Act. What the section is directed to is whether the circumstances in which the representations were made, rendered it unlikely that the representations were fabrications (R v Ambrosoli [2002] NSWCCA 386 at [28-41]). Nevertheless, all that needs to be established is that 'the circumstances make it likely'. This, of course, is to be contrasted with the requirement in s 65(2)(c) of 'high probability'.."
54Here the asserted facts are that, on 20 June 2011, the Accused armed himself and Gary Hunter with weapons, that he directed Wade Hunter to drive to a certain location and that, after leaving for a short time, he returned and the weapons were then discarded in storm water drains. The relevance on this application of the evidence of Gary Hunter at committal goes only to corroboration of aspects of this evidence and, thereby, the reliability of the asserted facts. The Crown did not submit that another use may be made of that material. Therefore, I do not consider that it should bear on my assessment.
55As part of the task required under s.65(2)(d), I have had regard for the fact that Wade Hunter was potentially criminally involved in the events of 20 June 2011. By his own account, there were questions as to his liability as an accessory both before and after the fact to the attack on Jason Dixon. I accept that his various statements contain a degree of minimisation of his role in the events. Nevertheless, Wade Hunter was never charged with any offences arising from the investigation into Jason Dixon's death. In fact, it does not appear as though it was ever communicated to him that he was a suspect. Accordingly, it does not appear that there was anything to be gained by him in inculpating his brother, given the risk of adverse consequences for himself.
56I turn to the issue raised by counsel for the Accused with respect to what he described as second-hand admissions in the statement of 2 September 2011. In my view, comments made by the Accused to Wade Hunter on 20 June 2011 tending to inculpate him are not properly characterised as second hand. Were he available, it would be appropriate for the Crown to adduce evidence of those admissions through him. That he is unavailable to give evidence does not make his evidence second hand. By operation of s.65(2), any admissions contained in Wade Hunter's statement of 2 September 2011 are admissible accounts of what he saw and observed. I do not consider that Lee v The Queen bears on this question. Further, I accept the Crown submission that s.66A of the Act supports the Crown on this issue.
57The assessment to be undertaken by me requires a balancing of all material bearing on the circumstances in which the previous representations were made. In my view, the representations relied upon by the Crown are admissible under s.65(2)(d) of the Act. I am satisfied that, having regard to the circumstances in which they were made, it is likely that the representations are reliable.